Oct 13, 2020
Amy Coney Barrett Senate Confirmation Hearing Day 2 Transcript
Day 2 of the Supreme Court confirmation hearing of Amy Coney Barrett took place before the Senate on October 13. Barrett answered questions about Roe v. Wade, the Affordable Care Act, gun regulation, and more. Read the transcript of the full hearing with Barrett’s testimony here.
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Chairman Lindsey Graham: (01:43)
[crosstalk 00:01:43] … 30 minute period today, then come back Wednesday and finish up. Then we’ll go on about our business. So I will try, I’ll make sure I stay within 30 minutes for sure, and if I can shorten it up, I will. So let’s get to it. You can start the clock. So you can relax a bit here, judge, and take your mask off. So yesterday we had a lot of the discussion about the Affordable Health Care Act. What I’m going to try to do very briefly this morning is to demonstrate the difference between politics and judging. All of my colleagues on the other side had very emotional pleas about Obamacare, charts of people with pre-existing conditions. I want to give you my side of the story about Obamacare.
Chairman Lindsey Graham: (02:31)
Now, this is Lindsey Graham, the Senator from South Carolina talking. This is not a question directed at you. From my point of view, Obamacare has been a disaster for the state of South Carolina. All of you over there want to impose Obamacare on South Carolina. We don’t want it. We want something better. We want something different. You know what we want in South Carolina? South Carolina care, not Obamacare. Now, why do we want that? Under the Affordable Care Act, three states get 35% of the money, folks. Can you name them? I’ll help you. California, New York, and Massachusetts. They are 22% of the population. Senator Feinstein’s from California, Nancy Pelosi’s from California. Chuck Schumer, the leader of the Democratic Senate is from New York, and Massachusetts is Elizabeth Warren. Now, why do they get 35% of the money when they are only 22% of the population? That’s the way they designed the law. The more you spend, the more you get.
Chairman Lindsey Graham: (03:37)
What does it mean for the people of South Carolina? If you had a per patient formula, where you got the same amount from the federal government to the state whether you lived in Charleston, Columbia, or San Francisco or New York City, if you leveled that out, it’d be almost a billion dollars more for us in South Carolina. So to my friends over there, we’re going to fight back. We want our money. If you’re going to have money allocated for Obamacare, we’re not going to sit back and quietly let you give 35% of it to three states. What else has happened in South Carolina? Four rural hospitals have closed because the revenue streams are uncertain. 30% increase in premiums in South Carolina for those on Obamacare. I was on Obamacare for a few years before I got on track here. My premiums went up 300%. My coverage was almost non-existent. A $6,000 deductible.
Chairman Lindsey Graham: (04:40)
So I want a better deal, and that’s a political fight. I’m in a campaign at home. If it were up to me, we would block grant this money, send it back to the states in a more fair allocation, and we would require pre-existing conditions to be covered as part of the block grant. We want sick people covered. But I got an idea. I think South Carolina may be able to deal with diabetes better and different than California. If you want good outcomes in medicine you need innovation, and the best way to get innovation is to allow people to try different things to get better outcomes. So the debate on healthcare is consolidating all the power in Washington, have some bureaucrat you’ll never meet running this program versus having it centered in the state where you live. Under my proposal, South Carolina would get almost a billion dollars more. The state of South Carolina would be in charge of administering Obamacare. They couldn’t build football stadiums with the money. They have to spend it on healthcare. They’d have to cover pre-existing conditions.
Chairman Lindsey Graham: (05:47)
But, as a patient in South Carolina, you would have a voice you don’t have today. If you didn’t like what was happening to you on the healthcare front, you could go to local officials and complain, and the people you’re complaining to live in your state. They send their family to the same hospital as you go. That’s a structural difference. That’s got nothing to do with this hearing. It’s got everything to do with politics. We on this side, do not. And the difference between analyzing a lawsuit and having a political argument is fundamentally different, and I hope to be able to demonstrate that over the course of the day. And I hope that my colleagues on this side of the aisle will not feel shy about telling my colleagues on the other side of the aisle why we think we have a better idea on healthcare. Now, the bottom line here, judge, you said yesterday something that struck me and I want the American people to understand what you meant.
Chairman Lindsey Graham: (06:45)
You said you’re an originalist. Is that true?
Amy Coney Barrett: (06:47)
Chairman Lindsey Graham: (06:48)
What does that mean, in English? Pass the button. I mean, we all love Senator Lee, but in English.
Amy Coney Barrett: (07:00)
In English. Okay. So in English that means that I interpret the Constitution as a law, that I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time and it’s not up to me to update it or infuse my own policy views into it.
Chairman Lindsey Graham: (07:22)
So in other words, you’re bound by the people who wrote it at the time they wrote it. That keeps you from substituting your judgment for theirs. Is that correct?
Amy Coney Barrett: (07:29)
Chairman Lindsey Graham: (07:30)
All right. Justice Scalia. He was an originalist, right?
Amy Coney Barrett: (07:34)
Yes, he was.
Chairman Lindsey Graham: (07:34)
People say that you’re a female Scalia. What would you say?
Amy Coney Barrett: (07:38)
I would say that justice Scalia was obviously a mentor, and as I said when I accepted the President’s nomination, that his philosophy is mine too. He was a very eloquent defender of originalism, And that was also true of textualism, which is the way that I approach statutes and their interpretation. And similarly to what I just said about originalism, for textualism, the judge approaches the text as it was written with the meaning it had at the time and doesn’t infuse our own meaning into it. But I want to be careful to say that if I’m confirmed, you would not be getting Justice Scalia. You would be getting Justice Barrett. And that’s so because originalists don’t always agree and neither do textualist. Justices Scalia and Thomas disagreed often enough that my friend, Judge Melissa Parr, teaches a class called Scalia Versus Thomas. It’s not a mechanical exercise.
Chairman Lindsey Graham: (08:38)
Well, I’ll wait till the movie comes out. So the bottom line for me is there’s a narrative building in this country, and again, you can stand down, this is just me speaking for me. Justice Ginsburg was an iconic figure in American history, just not the law. She was a trailblazer. She fought for better conditions for women throughout society. She was unashamedly progressive in her personal thought. She was devout to her faith. She worked for the ACLU. She was proudly pro-choice personally. But all of us on this side, apparently when they voted, accepted that she was highly qualified. What I want the American people to know. I think it’s okay to be religiously conservative, I think is okay to be personally pro-choice, I think is okay to live your life in a traditional Catholic fashion, and you’d still be qualified for the Supreme Court. So all the young conservative women out there, this hearing to me is about a place for you.
Chairman Lindsey Graham: (09:40)
I hope when this is all over that there’ll be a place for you at the table. There’ll be a spot for you at the Supreme Court like there was for judge Ginsburg. And to President Trump, I don’t know if you’re listening or not, by picking Judge Barrett you have publicly said you find value in all of these characteristics. But beyond anything else you find Judge Barrett to be highly qualified. I would say you’re one of the greatest picks President Trump could have made, and from the conservative side of the aisle, you’re one of the most qualified people of your generation. Let’s talk about Brown vs. Board of Education, because I know Senator Blumenthal will. I’m going to talk about that. You said in writings, it was a super precedent. What did you mean?
Amy Coney Barrett: (10:28)
Well, in my writings, so as a professor, I talked about the doctrine of Stare Decisis, and super precedent is not a doctrinal term that comes from the Supreme Court and I think maybe in political conversation or in newspapers, people use it different ways. But in my writing, I was using a framework that’s been articulated by other scholars. And in that context, super precedent means precedent that is so well established that it would be unthinkable that it would ever be overruled. And there are about six cases on this list that other scholars have identified.
Chairman Lindsey Graham: (11:03)
Let’s talk about Brown and talk about why it would be unthinkable. First, let’s talk about, what’s the process that would lead to it being overruled? What would have to happen?
Amy Coney Barrett: (11:15)
For Brown to be overruled, you would have to have Congress or some state or local government impose segregation again, [crosstalk 00:11:25].
Chairman Lindsey Graham: (11:25)
Okay, let’s stop right there. If you want to make yourself famous, by the end of the day, you can say, “We want to go back to segregation,” I promise you, you’ll be on every cable TV channel in America. I doubt if you’ll go very far, but the point we’re trying to make here is the court just can’t wake up and say, “Let’s revisit Brown.” It has to be a case in controversy, is that right?
Amy Coney Barrett: (11:46)
Yes, that’s right.
Chairman Lindsey Graham: (11:47)
So before a Brown decision, you could review Brown, somebody out there would have to be dumb enough to pass a law saying, “Let’s go back to segregated schools.” Is that fair to say?
Amy Coney Barrett: (11:57)
That is fair to say.
Chairman Lindsey Graham: (11:58)
Do you see that happening anytime soon?
Amy Coney Barrett: (12:00)
I do not see that happening anytime soon.
Chairman Lindsey Graham: (12:02)
Yeah, I don’t either. So let’s talk about the process in general. There’s the Heller case. What’s that about?
Amy Coney Barrett: (12:09)
The Heller case is a case decided by the Supreme court, which held that the Second Amendment protects an individual right to bear arms.
Chairman Lindsey Graham: (12:18)
Okay. Now, my friends on the left, some of them have a problem with Heller. They may try to challenge the construct of Heller. If a state or local government passed a law in defiance of Heller, what would happen?
Amy Coney Barrett: (12:30)
In defiance of Heller?
Chairman Lindsey Graham: (12:31)
Or that was challenging the construct of Heller?
Amy Coney Barrett: (12:34)
That challenge, the construct of Heller, if it was brought in a lower court, Heller binds. I mean, lower courts always have to follow a Supreme Court precedent.
Chairman Lindsey Graham: (12:44)
And if the Supreme Court wanted to revisit Heller, what would they do?
Amy Coney Barrett: (12:50)
If someone challenged Heller below, because a state or local government passed a law contradicting Heller, the Supreme Court would have to take that case once it was appealed all the way up. So the Court would have to decide, “Yes, we want to overrule Heller and we have enough votes to grant cert,” and then do so.
Chairman Lindsey Graham: (13:07)
So that’s the way the process works?
Amy Coney Barrett: (13:09)
Yes, it would start because there was a law. Then there was a lawsuit. Then there was an appeal. And then the court granted cert, and then the court decided the case.
Chairman Lindsey Graham: (13:17)
Is that true no matter what the issue is? Whether it’s gun, abortion, healthcare, campaign finance, does that process hold true for everything?
Amy Coney Barrett: (13:26)
Yes. Judges can’t just wake up one day and say, ” I have an agenda. I like guns. I hate guns. I like abortion. I hate abortion,” and walk in like a royal queen and impose their will on the world. You have to wait for cases and controversies, which is the language of the Constitution, to wind their way through the process.
Chairman Lindsey Graham: (13:46)
All right. Well, Senator Sasse gave us a good civics lesson. I hope that’s the basic lesson in law here. So if a state said, “I don’t think you should have over six bullets,” and somebody believed that violated the Second Amendment, there would be a lawsuit and the same process would work, right?
Amy Coney Barrett: (14:03)
The same process would work. In that case, there would be parties would have to sue the state arguing that, that law was unconstitutional. It would wind its way up, and if it got to the Supreme Court and if the Supreme Court decided to take it, a whole decision making process begins. You hear arguments from litigants on both sides. They write briefs. You talk to clerks as a judge. You talk to your colleagues. Then you write an opinion. Opinions circulate, and you get feedback from your colleagues. So it’s an entire process. It’s not something that a judge or justice would wake up and say, “Oh, we’re hearing this case. I know what my vote is going to be.”
Chairman Lindsey Graham: (14:46)
Let’s talk about the two Supreme Court cases regarding abortion. What are the two leading cases in America regarding abortion?
Amy Coney Barrett: (14:54)
Well, I think most people think of Roe vs. Wade, and Casey is the case after Roe that preserved Roe’s central holding, but grounded it …
Amy Coney Barrett: (15:03)
Roe that preserved Roe’s central holding, but grounded it in a slightly different rationale.
Chairman Lindsey Graham: (15:05)
So what is that rationale?
Amy Coney Barrett: (15:07)
Rationale is that the state cannot impose an undue burden on a woman’s right to terminate a pregnancy.
Chairman Lindsey Graham: (15:14)
Okay. Unlike Brown, there are states challenging on the abortion front. There are states that are going to a fetal heartbeat bill. I have a bill, judge, that would disallow abortion on demand at the 20 weeks, the fifth month of the pregnancy. We’re one of seven nations in the entire world that allow abortion on demand at the fifth month. The construct or my bill is, because the child is capable of feeling pain in the fifth month. Doctors tell us to save the child’s life, you have to provide anesthesia if you operate because they can feel pain. The argument I’m making is if you have to provide anesthesia to save the child’s life, because they can feel pain, it must be a terrible death to be dismembered by an abortion. That’s a theory to protect the unborn at the fifth month. If that litigation comes before you, will you listen to both sides?
Amy Coney Barrett: (16:12)
Of course. I’ll do that in every case.
Chairman Lindsey Graham: (16:13)
So I think 14 states have already passed a version of what I’ve just described. So there really is a debate in America still, unlike Brown versus Board of Education, about the rights of the unborn. That’s just one example. So if there’s a challenge coming from a state, if a state passes a law, and it goes into court where people say, “This violates Casey,” how do you decide that?
Amy Coney Barrett: (16:41)
Well, it would begin in a district court, in a trial court. The trial court would make a record. The parties would litigate and fully develop that record in the trial court. Then it would go up to a court of appeals that would review that record, looking for error. And then, again, it would be the same process. Someone would have to seek certiorari at the Supreme Court. The Supreme Court would have to grant it. And then at that point, it would be the full judicial process. It would be briefs, oral argument, conversations with law clerks in chambers, consultation with colleagues, writing an opinion, really digging down into it. It’s not just a vote. You all do that. You all have a policy, and you cast a vote. The judicial process is different.
Chairman Lindsey Graham: (17:23)
Okay. So when it comes to your personal views about this topic, do you own a gun?
Amy Coney Barrett: (17:33)
We do own a gun.
Chairman Lindsey Graham: (17:34)
Okay. All right. Do you think you could fairly decide a case even though you own a gun?
Amy Coney Barrett: (17:41)
Chairman Lindsey Graham: (17:42)
All right. You’re Catholic.
Amy Coney Barrett: (17:43)
Chairman Lindsey Graham: (17:44)
I think we’ve established that. The tenants of your faith mean a lot to you, personally. Is that correct?
Amy Coney Barrett: (17:51)
That is true.
Chairman Lindsey Graham: (17:51)
You’ve chosen to raise your family in the Catholic faith. Is that correct?
Amy Coney Barrett: (17:55)
Chairman Lindsey Graham: (17:56)
Can you set aside whatever Catholic beliefs you have regarding any issue before you?
Amy Coney Barrett: (18:02)
I can. I have done that in my time on the Seventh Circuit. If I stay on the Seventh Circuit, I’ll continue to do that. If I’m confirmed to the Supreme Court, I will do that still.
Chairman Lindsey Graham: (18:10)
And I would dare say that there are personal views on the Supreme Court, and nobody questions whether our liberal friends can set aside their beliefs. There’s no reason to question yours, in my view. So the bottom line here is that there’s a process. You fill in the blanks, whether it’s about guns and Heller, abortion rights. Let’s go to Citizens United. To my good friend, Senator Whitehouse, me and you are going to come closer and closer about regulating money. Because I don’t know what’s going on out there, but I can tell you there’s a lot of money being raised in this campaign. I’d like to know where the hell some of it’s coming from. But that’s not your problem. Citizens United says what?
Amy Coney Barrett: (18:57)
Citizen United extends the protection of the first amendment to corporations who are engaged in political speech.
Chairman Lindsey Graham: (19:03)
So if Congress wanted to revisit that and somebody challenged it under Citizens United, that Congress went too far, what would you do? How would the process work?
Amy Coney Barrett: (19:14)
Well, it’d be the same process I’ve been describing. First, somebody would have to challenge that law in a case, somebody, presumably, who wanted to spend the money on a political campaign. It would wind its way up, and judges would decide it after briefs, and oral argument, and consultation with colleagues, and the process of opinion writing.
Chairman Lindsey Graham: (19:33)
Okay. Same-sex marriage. What’s the case that established same-sex marriage as the law of the land?
Amy Coney Barrett: (19:40)
Chairman Lindsey Graham: (19:41)
Okay. If there was a state who tried to outlaw same-sex marriage, and there’s litigation, would it follow the same process?
Amy Coney Barrett: (19:51)
Well, it would. And one thing I’ve neglected to say before that’s occurring to me now, is that not only would someone have to challenge that statute. If they outlawed same-sex marriage, there’d have to be a case challenging it. And for the Supreme Court to take it up, you’d have to have lower courts going along and saying, “We’re going to flout Obergefell.” And the most likely result would be that lower courts, who are bound by Obergefell, would shut such a lawsuit down. And it wouldn’t make its way up to the Supreme Court. But if it did, it would be the same process I’ve described.
Chairman Lindsey Graham: (20:26)
Well, let’s turn now to Senator Hawley’s favorite topic, substantive due process. As a legal theory, what am I talking about? Can you explain it for the country? Because if you can’t, we’re in trouble. I think I’ll have a hard time doing it.
Amy Coney Barrett: (20:41)
So both the 14th and 5th Amendments protect life, or provide that the state cannot take life, liberty, or property without due process of law. And that sounds like a procedural guarantee, but in Supreme Court precedent, it has a substantive component. And so the substantive due process clause says that there are some liberties, some rights that people possess, that the state can’t take away or can’t take away without a really good reason. So the right to use birth control, the right to an abortion, are examples of rights protected by substantive due process.
Chairman Lindsey Graham: (21:14)
These are judicially created rights, not found in the document called the Constitution. Is that correct?
Amy Coney Barrett: (21:19)
Well, the Supreme Court has grounded them in the Constitution, although they’re not-
Chairman Lindsey Graham: (21:23)
But they’re not written.
Amy Coney Barrett: (21:24)
They’re not expressed.
Chairman Lindsey Graham: (21:25)
Okay. So is it fair to say there’s a great debate in the law about how far this should go and what limits should apply, if any?
Amy Coney Barrett: (21:34)
That’s fair to say. There’s also a lot of debate in Supreme Court opinions. I’m not aware of anybody proposing to throw it over entirely, but there’s certainly a debate about how to define these rights and how far it should go.
Chairman Lindsey Graham: (21:45)
Well, let’s just say that you’re in the camp, or anybody’s in the camp, that substantive due process, as a legal concept, is unbounded. It basically makes the Constitution no more certain than the five people interpreting it at any given time in the country. Whatever rights they think you have, you get. Whatever rights they want to take away from you, they can. It’s a pretty nebulous legal concept. That’s sort of my view of it. I’m not imposing my views on yours. But then there’s a thing called precedent. Let’s say you didn’t like a case decided under substantive due process, you thought the whole concept was Constitutionally an era. How does precedent play?
Amy Coney Barrett: (22:29)
So precedent is the principle that cases that have been decided by the Court, before this one lands on the docket, are presumptively controlling. And so precedent comes from a concept called stare decisis, which is a shorthand for longer Latin phrase that means, stand by the thing decided and do not disturb the calm. So precedent is a principle that you’re not going to overrule something without good reason, or royal up the law, without justification for doing so.
Chairman Lindsey Graham: (22:59)
So you could say the underlying analysis that led to any case, just case X, “I reject that analysis, but I will now apply precedent to whether or not it should be reversed.” Is that what you’re telling us?
Amy Coney Barrett: (23:14)
That is, but the precedent itself-
Chairman Lindsey Graham: (23:16)
What are the factors would a judge look at in terms of overruling a precedent?
Amy Coney Barrett: (23:21)
Well, of course, the inquiry begins because there’s been some argument that the precedent was wrong. But that’s not enough to justify an overruling. You also consider-
Chairman Lindsey Graham: (23:31)
You could say, structurally, this case shouldn’t… Constitutionally, it was wrongly decided. But that doesn’t end the debate. Is that correct?
Amy Coney Barrett: (23:37)
No. That’s right. You have to look at reliance interests. You have to look whether the law or the facts-
Chairman Lindsey Graham: (23:42)
Let’s stop right quick. Reliance interest by who?
Amy Coney Barrett: (23:45)
Reliance interest by those who have relied on the precedent.
Chairman Lindsey Graham: (23:49)
The people of the the United States.
Amy Coney Barrett: (23:50)
People of the United States who have ordered their affairs around it.
Chairman Lindsey Graham: (23:52)
So the Heller case, people have relied upon the Second Amendment be an individual right. Is that correct?
Amy Coney Barrett: (23:59)
Precedent, yeah. Presumably so. People have-
Chairman Lindsey Graham: (24:01)
Well, then abortion would be the right to have abortion. That’d be a reliance factor, right?
Amy Coney Barrett: (24:08)
The court in Casey spent a lot of time describing the reliance of people on the right to an abortion.
Chairman Lindsey Graham: (24:13)
So what I want the public to know is that if you overrule a precedent of the Court, even if you think it was wrongly decided, there’s a list of things you have to look at before you actually overrule the case. Is that a fair way of saying it?
Amy Coney Barrett: (24:29)
It’s a fair way of saying it.
Chairman Lindsey Graham: (24:30)
Would you apply those factors if you ever found yourself in a position where you wanted to consider overruling in a precedent?
Amy Coney Barrett: (24:37)
Chairman Lindsey Graham: (24:38)
Okay. Have precedents of the Court been overruled before?
Amy Coney Barrett: (24:42)
Chairman Lindsey Graham: (24:43)
Can you give me an example?
Amy Coney Barrett: (24:44)
Brown versus the Board of Education overruled Plessy versus Ferguson to get rid of the separate but equal doctrine.
Chairman Lindsey Graham: (24:50)
Okay. So recusal… My colleagues are asking you to recuse yourself from litigation around the Affordable Care Act. What’s the precedent regarding the Affordable Care Act, if any?
Amy Coney Barrett: (25:06)
The precedent that might well-
Chairman Lindsey Graham: (25:08)
Is there a precedent on this issue?
Amy Coney Barrett: (25:10)
There’s not precedent on the issue that’s coming up before the Court. It’s turns on a doctrine called severability, which was not an issue in either of the two big Affordable Care Act cases.
Chairman Lindsey Graham: (25:24)
Okay. So the issue that was before the Court was NFIB versus Sebelius. Is that correct?
Amy Coney Barrett: (25:27)
That was the first about the Constitutionality of the mandate.
Chairman Lindsey Graham: (25:30)
Okay. And I think Congress has zeroed out, what the Court called, attacks. And the real issue now is, does it stand, and can it be severable?
Amy Coney Barrett: (25:39)
Right. So the issue now is, now that Congress has zeroed it out, can it be called a tax or is it now a penalty? And then the second issue is, if it is a penalty, can it be just cut out from the statute so that the rest of the statute, including protection for preexisting conditions, stands.
Chairman Lindsey Graham: (25:56)
Well, a lot smarter people than me suggest that severability would be a hard challenge for those who are opposing the law. But time will tell. Do you feel like you should recuse yourself from that case because you’re being nominated by President Trump?
Amy Coney Barrett: (26:11)
Well, Senator, recusal itself is a legal issue. There’s a statute, 28 USC 455, that governs when judges and justices have to recuse. There’s precedent under that rule. Justice Ginsburg, in explaining the way recusal works, said that, “It’s always up to the individual justice, but it always involves consultation with the colleagues, with the other eight justices.” So that’s not a question that I could answer in the abstract.
Chairman Lindsey Graham: (26:37)
If you’re appointed by Obama, that’s no reason to recuse yourself in a case involving Obama policy. Is that correct?
Amy Coney Barrett: (26:44)
Well, that would be a decision for each justice to make.
Chairman Lindsey Graham: (26:46)
Right. If a justice had a conflict with a particular policy issue they helped drafted, that would be a consideration. Is that correct?
Amy Coney Barrett: (26:54)
That would be a consideration.
Chairman Lindsey Graham: (26:55)
Okay. So when it comes to recusing yourself, you’ll do what the Supreme Court requires of every justice?
Amy Coney Barrett: (27:02)
Chairman Lindsey Graham: (27:05)
Okay. Thank you very much. How’s it feel to be nominated for the Supreme Court of the United States?
Amy Coney Barrett: (27:13)
Well, Senator, I’ve tried to be on a media blackout for the sake of my mental health. But you can’t keep yourself walled off from everything. And I’m aware of the lot of the characatures that are floating around. So I think what I would like to say in response to that question is that, look, I’ve made distinct choices. I’ve decided to pursue a career and have a large family. I have a multi-racial family. Our faith is important to us. All of those things are true, but they are my choices. And in my personal interactions with people… I have a life brimming with people who’ve made different choices. And I’ve never tried, in my personal life, to impose my choices on them. And the same is true professionally. I apply the law and Senator, I think I should say why I’m sitting in this seat in response to that question too, why I’ve agreed to be here. Because I don’t think it’s any secret to any of you or to the American people that this is a really difficult, some might say excruciating, process.
Amy Coney Barrett: (28:17)
And Jesse and I had a very brief amount of time to make a decision with momentous consequences for our family. We knew that our lives would be combed over for any negative detail. We knew that our faith would be caricatured. We knew our family would be attacked. And so we had to decide whether those difficulties would be worth it, because what sane person would go through that if there wasn’t a benefit on the other side. And the benefit, I think, is that I’m committed to the rule of law and the role of the Supreme Court in dispensing equal justice for all. And I’m not the only person who could do this job, but I was asked. And it would be difficult for anyone. So why should I say someone else should do the difficulty? If the difficulty is the only reason to say no, I should serve my country. And my family is all in on that because they share my belief and the rule of law.
Chairman Lindsey Graham: (29:08)
Well, thank you. I think a lot of people would say, you got to be sort of insane to run for the Senate in this world. But good news for you, we’ve all chosen kind of crazy stuff to do. I just end with this. I’m glad you said, “Yes.” I’m glad President Trump chose you. And really, before the people of the United States is a very basic question. Is it okay to be religiously conservative? Is it okay to be pro-life in your personal life? It clearly is okay to be progressive and be pro-choice and seek a seat on the Supreme Court. I think resoundingly, yes. And here’s why your nomination is so important to me. In my world, to be a young conservative woman is not an easy path to take. We have two women on this committee. They can talk about it better than I. So I want to thank President Trump for choosing you, and I will do everything I can to make sure that you have a seat at the table.
Chairman Lindsey Graham: (30:03)
… everything I can to make sure that you have a seat at the table, and that table is the Supreme Court. And if anybody in the country, in my view, deserves to have a seat at the table based on the way they’ve lived their life and their capabilities in the law, it is you, Judge. God bless you. Thank you.
Amy Coney Barrett: (30:18)
Thank you, Chairman Graham.
Chairman Lindsey Graham: (30:19)
Senator Dianne Feinstein: (30:22)
Mister Chairman. Judge, it’s wonderful to see you here, also with a family that I have been observing. They sit still, quiet. You’ve done a very good job.
Amy Coney Barrett: (30:34)
I have eyes in the back of my head, so I’m good at watching.
Senator Dianne Feinstein: (30:37)
I was wondering if you might introduce us to them.
Amy Coney Barrett: (30:40)
Sure. So I have my husband, Jesse, my son, JP, my daughter, Emma, my daughter, Juliette, my daughter, Tess, my daughter, Vivian, and my son, Liam. And then behind them are my six siblings who are with me today. I’ll start the side right behind Vivian, it’s my sister, Vivian, my sister, Eileen, my brother, Michael, my sister, Megan and my sister, Amanda. And is Carrie in the room? And my sister Carrie is sitting right over there.
Senator Dianne Feinstein: (31:11)
You don’t have a magic formula for how you do it and handle all the children, and your job, and your work and your thought process, which is obviously excellent, do you?
Amy Coney Barrett: (31:23)
Senator Dianne Feinstein: (31:25)
Yes. Yes. Well, let me begin with a question that the Chairman touched on, and it’s of great importance, I think, because it goes to a woman’s fundamental right to make the most personal decisions about their own body.
Senator Dianne Feinstein: (31:44)
As a college student in the 1950s, I saw what happened to young women who became pregnant at a time when abortion was not legal in this country. I went to Stanford, I saw the trips to Mexico, I saw young women try to hurt themselves, and it was really deeply, deeply concerning. During her confirmation hearing, before this committee, in 1993, Ruth Bader Ginsburg was asked several questions about her views on whether the Constitution protects a woman’s right to abortion. She unequivocally confirmed her view that the Constitution protects a woman’s right to abortion. She explained it like this, and I quote, “The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It’s a decision she must make for herself. When government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choice.” At one point, our former colleague, Orrin Hatch, then the ranking member of this committee, commended her for her being “very forthright in talking about that.” So I hope, and you have been thus far, be equally forthright with your answers.
Senator Dianne Feinstein: (33:21)
In Planned Parenthood of Southeastern Pennsylvania versus Casey, Justice Scalia, as was said earlier, joined the dissent, which took the position, and I quote, “We believe that Roe was wrongly decided and that it can and should be overruled, consistent with our traditional approach to stare decisis in constitutional cases.” Do you agree with Justice Scalia’s view that Roe was wrongly decided?
Amy Coney Barrett: (33:55)
So Senator, I do want to be forthright and answer every question so far as I can. I think on that question, I’m going to invoke Justice Kagan’s description, which I think is perfectly put. When she was in her confirmation hearing, she said that she was not going to grade precedent or give it a thumbs up or thumbs down, and I think in an area where precedent continues to be pressed and litigated, as is true of Casey, it would actually be wrong and a violation of the canons for me to do that as a sitting judge. So if I express a view on a precedent one way or another, whether I say I love it or I hate it, it signals to litigants that I might tilt one way or another in a pending case.
Senator Dianne Feinstein: (34:40)
So on something that is really a major cause with major effect on over half of the population of this country, who are women after all, it’s distressing not to get a straight answer, so let me try again. Do you agree with Justice Scalia’s view that Roe was wrongly decided?
Amy Coney Barrett: (35:05)
Senator, I completely understand why you are asking the question, but again, I can’t pre-commit or say yes, I’m going in with some agenda, because I’m not. I don’t have any agenda. I have no agenda to try to overrule Casey. I have an agenda to stick to the rule of law and decide cases as they come.
Senator Dianne Feinstein: (35:31)
As a person, I don’t know if you’ll answer this one either, do you agree with Justice Scalia’s view that Roe can and should be overturned by the Supreme Court?
Amy Coney Barrett: (35:42)
Well, I think my answer is the same because that’s a case that’s litigated. Its contours could come up again, in fact do come up, they came up last term before the court. So I think what the Casey standard is, and it’s a contentious issue, which is I know one reason why it would be comforting to you to have an answer, but I can’t express views on cases or pre-commit to approaching a case any particular way.
Senator Dianne Feinstein: (36:15)
Well, that makes it difficult for me, and I think for other women also on this committee, because this is a very important case and it affects a lot of people, millions and millions of women, and you could be a very important vote. I had hoped, you would say, as a person, you’ve got a lovely family, you understand all the implications of family life, you should be very proud of that, I’m proud of you for that, but my position is a little different. You’re going on the biggest court of this land with a problem out there that all women see one way or another in their life, and not all, but certainly married women do and others too. So the question comes, what happens? Will this justice support a law that has substantial precedent now? Would you commit yourself on whether you would or would not?
Amy Coney Barrett: (37:26)
Senator, what I will commit is that I will obey all the rules of stare decisis, that if a question comes up before me about whether Casey or any other case should be overruled, that I will follow the law of stare decisis, applying it as the court is articulating it, applying all the factors, reliance, workability, being undermined by later facts in law, just all the standard factors. I promise to do that for any issue that comes up, abortion or anything else. I’ll follow the law.
Senator Dianne Feinstein: (37:59)
Well, I think that’s expected. Well, I guess I’ve gone as far as I can. Let me go to another issue.
Senator Dianne Feinstein: (38:08)
This country is facing great gun violence. There’s been a surge in gun sales during the COVID-19 crisis, which has led to more lives being needlessly lost. According to the Gun Violence Arcave, Archive, excuse me, an independent research organization, there were 60 mass shootings in May alone. These shootings killed 40 people. They hurt 250 more. Also, there’s been a troubling spike in gun sales. Americans bought approximately two million guns this past March. It’s the second highest month ever for gun sales. That figure does not take into account all the gun sales that could not be completed because the purchaser failed a background test, check, excuse me, a number that has also skyrocketed. For example, this past March, the FBI’s background check system blocked 23,692 sales, more than double the 9,500 sales blocked in March of 2019. Do you agree that federal state and local governments have a compelling interest in preventing a rise in gun violence, particularly during a pandemic?
Amy Coney Barrett: (39:40)
Well, Senator, of course, the constitutionality of any particular measure that was passed by state or local governments, or by this body, would be subject to the same judicial process that I described with Senator Graham.
Amy Coney Barrett: (39:55)
What I will say, because this is just descriptive of Heller, Heller leaves room for gun regulations, and that’s why there has been a lot of litigation in the lower courts, which makes me constrained not to comment on the limits of it. But Heller does not make a right absolute by its… Says so in the opinion,
Senator Dianne Feinstein: (40:14)
Well, let me ask one more question. In a recent dissenting opinion that you wrote, you said there was “no question” that “keeping guns out of the hands of those who are likely to misuse them” is “a very strong governmental interest.” Do you stand by that statement?
Amy Coney Barrett: (40:37)
So I don’t… Let’s see. I can’t remember precisely the words of Cantor, which is the case in which I dissented, which is-
Senator Dianne Feinstein: (40:46)
That’s correct, Cantor v. Barr.
Amy Coney Barrett: (40:47)
Cantor v. Barr. What I said in that opinion, I stand by, which is that the original meaning of the second amendment, and I went through a lot of detailed history, and that case does support the idea that governments are free to keep guns out of the hands of the dangerous. So for example, the mentally ill, others who would be likely to misuse guns.
Senator Dianne Feinstein: (41:13)
So where does that leave you on Roe? The Chairman asked, I thought, a very good question for many people and particularly for women. This is a fundamental question. We all have our moral values. We have our religions, we live by that, I respect you and your family for doing just that, but this is a very real problem out there. And if you could be more specific in any way with respect how you would view your place on the court with respect to controlling weapons in this country.
Amy Coney Barrett: (41:56)
I think what I can say is that my opinion in Cantor shows how I approach questions as a matter of judicial philosophy. I mean, I spent a lot of time in that opinion looking at the history of the second amendment and looking at the Supreme Court’s cases, and so the way in which I would approach the review of gun regulation is in that same way, to look very carefully at the text, to look carefully at what the original meaning was. That was the method that both the majority and dissent in Heller took. So I promise that I would come to that with an open mind, applying the law as I could best determine it.
Senator Dianne Feinstein: (42:35)
Okay, let me move on. One of my constituents, Christina Garcia, was able to obtain insurance coverage and have surgery that saved her eyesight only before the Affordable Care Act. Her experience is not unique. Senator Tammy Baldwin has a constituent, Jimmy Anderson, in her home state of Wisconsin, and she asked that this story be shared.
Senator Dianne Feinstein: (43:03)
Jimmy is a 34-year-old and member of the Wisconsin state legislature. In 2010, a drunk driver hit the family’s car as they were returning home from celebrating Jimmy’s 24th birthday. Jimmy’s mother, father and little brother were killed in the accident. Jimmy was paralyzed from the waist down. His medical recovery was intense. As Jimmy has said, “Doctors managed to patch me up with dozens of stitches and multiple surgeries and about a pound of steel on my spine.” But soon after, his insurance company told him he was nearing his lifetime maximums and he would have to pay for the rest of his health care expenses.
Senator Dianne Feinstein: (43:54)
As Jimmy explains, “With hundreds of thousands of dollars still left to go, I don’t know what I was going to do. I was scared. I was terrified. I was just a student. I didn’t have that kind of money.” Fortunately, a few days later, the insurance company sent him another letter. This one informed him that the provisions of the ACA had kicked in, which meant there were no longer lifetime maximums and his care would be covered. In Jimmy’s own words, “I was able to put my life back together, and I credit the Affordable Care Act for that.”
Senator Dianne Feinstein: (44:34)
Judge Barrett, how should the loss of ACA’s protection against lifetime coverage caps, caps that can be used to end coverage for life-saving care, factor into a court’s consideration of the validity of the ACA?
Amy Coney Barrett: (44:53)
Senator, so far as I know the case next week doesn’t present that issue. It’s not a challenge to-
Amy Coney Barrett: (45:03)
… issue. It’s not a challenge to pre-existing conditions coverage, or to the lifetime maximum relief from a cap.
Senator Dianne Feinstein: (45:13)
Well, what is your view?
Amy Coney Barrett: (45:15)
Of how it should factor in? Let’s see. I think that any issue that would arise under the Affordable Care Act or any other statute should be determined by the law, by looking at the text of the statute, by looking at precedent, the same way that it would for anyone, and if there were policy differences or policy consequences, those are for this body. For the court, it’s really a question of adhering to the law and going where the law leads, and leaving the policy decisions up to you.
Senator Dianne Feinstein: (45:50)
For me, my vote depends a lot on these responses, because these are life or death questions for people. It’s my understanding that you were critical of Justice Roberts for upholding the ACA, stating that he quote, “Pushed the Affordable Care Act beyond its plausible meaning to save the statute,” end quote. And in what way did the Chief Justice go beyond the ACA’s plausible meaning?
Amy Coney Barrett: (46:24)
So I’ve written about this, and that description is consistent with the way the Chief Justice described in his own majority. That was King v. Burwell, where the court had to decide whether the phrase, “Established by a state,” also included exchanges that were established by the federal government, and the majority in that case acknowledged that treating the phrase, “Established by a state,” as including exchanges established by the federal government was not the most natural reading, but for other reasons, other policy reasons in canons of interpretation, they chose to adopt the less natural reading.
Senator Dianne Feinstein: (47:04)
You see, for me, the case coming up, California v. Texas, puts a whole new weight on your nomination, because the Affordable Care Act is now being so well accepted. I represent the largest state, as does Senator Harris, that we have, and there are just over 10 million people dependent on the activities under this actually, and that they be sustained. And so, there is really great concern about what your view is. That case is coming up, can you give us at least your view?
Amy Coney Barrett: (47:56)
Well, Senator, the issue and the case that’s coming up, doesn’t involve… It’s not the same issue as the ones in NFIB versus v. Sebelius, or King v. Burwell. It’s a different issue, so.
Senator Dianne Feinstein: (48:08)
Well, then give us both.
Amy Coney Barrett: (48:12)
Well, let’s see. So what I said, what you quoted to me, was that I thought that the interpretation of the phrase, “Established by a state,” was stretched when the court held that it was established by the federal government. That’s not the issue in California v. Texas, the issue in California v. Texas is if, whether now that Congress has just completely zeroed out the mandate, whether it’s still a tax or a penalty, and even if so, is it constitutional, and then even so, is that fatal to the statute? There’s a doctrine called severability, which sounds like legalese, but what it means is, is it okay with the statute? Could you just pluck that part out and let the rest of the statute stand, or is that provision which has been zeroed out, so critical to the statute that the whole statute falls? So really, the issue in the case is this doctrine of severability, and that’s not something that I’ve ever talked about with respect to the Affordable Care Act. Honestly, I haven’t written anything about severability that I know of at all.
Senator Dianne Feinstein: (49:26)
So you have no thoughts on the subject?
Amy Coney Barrett: (49:28)
Well, it’s a case that’s on the court’s docket, and the canons of judicial conduct would prohibit me from expressing a view.
Senator Dianne Feinstein: (49:38)
Okay, I’ll move on. On July 30th, 2020, President Trump made claims of voter fraud and suggested he wanted to delay the upcoming election. Does the Constitution gives the President of the United States the authority to unilaterally delay a general election under any circumstances? Does federal law?
Amy Coney Barrett: (50:02)
Well Senator, if that question ever came before me, I would need to hear arguments from the litigants, and read briefs, and consult with my law clerks, and talk to my colleagues, and go through the opinion writing process. So, if I give off the cuff answers, then I would be basically a legal pundit, and I don’t think we want judges to be legal pundits. I think we want judges to approach cases thoughtfully and with an open mind.
Senator Dianne Feinstein: (50:30)
Okay, let me try something else. In 2017, in a case called EEOC v. AutoZone, the Seventh Circuit, your circuit issued an opinion which permitted an employer to intentionally assign its employees to specific stores, due to their race. The dissent, in this opinion, argued the decision permitted employers to legally establish separate but equal facilities, and argued if upheld, this decision would be quote, “Contrary to the position that the Supreme Court has taken in analogous equal protection cases, as far back as Brown v. The Board of Education.” The case was appealed to the full panel of the Seventh, and you sided, as I understand it, with the majority, to deny a rehearing and let the opinion stand. Is that correct?
Amy Coney Barrett: (51:32)
That is correct, and I think I need to give a little context for what it means to vote to deny to rehear something en banc. Our court, just like the Supreme Court and the certiorari process, doesn’t take cases just because we think the panel got it wrong. There’s a lot of deference to panels, and Rule 35 of the Rules of Appellate Procedure constrains and limits the times in which we take the resources of the full court to rehear a case. So I was not on that panel and I did not express a view on the merits. A vote to deny to hear something en banc, is, like a vote, not to deny certiorari, not a vote that expresses a view on the merits.
Senator Dianne Feinstein: (52:16)
Amy Coney Barrett: (52:16)
It was a statutory case, it was not an equal protection case.
Senator Dianne Feinstein: (52:19)
Let me ask you a question, as a person.
Amy Coney Barrett: (52:25)
Senator Dianne Feinstein: (52:25)
If an employer can transfer an employee based solely on his or her race, and that does not constitute a materially adverse employment action, because it was purely lateral job transfer, please explain what factors must be present for a policy based on race to violate Brown v. The Board’s prohibition of separate but equal?
Amy Coney Barrett: (52:53)
Well, Senator, to my knowledge, Brown wasn’t at issue in the majority opinion, it turned on statutory language in Title VII. But again, I didn’t express a view on the merits, and so I can’t comment on whether I think that the panel majority got that right, or got that wrong. That’s an issue that may well come before me, even in the Seventh Circuit, some may press for its overruling, and I may be on a panel that has to decide whether that precedent was wrong.
Senator Dianne Feinstein: (53:22)
Well, let me ask you, as a person, do you have a general belief?
Amy Coney Barrett: (53:27)
As a person, I have a general belief that racism is abhorrent.
Senator Dianne Feinstein: (53:32)
That racism is what?
Amy Coney Barrett: (53:33)
Senator Dianne Feinstein: (53:35)
Well, I think we would all agree with that. So how should a lower court in the Seventh determine when race-based policies could constitute a materially adverse employment action?
Amy Coney Barrett: (53:55)
Well, I’m not aware of cases presenting the exact same facts. Is that AutoZone?
Senator Dianne Feinstein: (54:00)
I’m just asking you for your view.
Amy Coney Barrett: (54:04)
I know that the material adverse consequence was the standard at issue in that case. I have to confess that I would need to look at the statute and the precedent to… Well, even if I had a specific hypothetical in front of me, I couldn’t really say without looking at the statute and the precedent what factors are involved, because I wasn’t on that panel and haven’t decided a similar case.
Senator Dianne Feinstein: (54:30)
Okay. Let me go to another issue. The issue of LGBT equality is very personal for me. I spent two decades as a county supervisor and mayor of a city. I watched firsthand as the LGBT community fought for legal recognition of their lives, their relationships, their personal dignity. I was there before the loss, so I saw in San Francisco what was happening.
Senator Dianne Feinstein: (55:02)
I want to speak briefly about one couple, Del Martin and Phyllis Lyon, who I met in the 1970s. They were vibrant members of San Francisco’s community. I was President of the Board of Supervisors, they worked with me to pass a city-wide ordinance in 1978, that provided critical protection against discrimination in employment, housing, and public accommodations. At that time, this was one of the strongest protections for the gay community in the entire nation. We’ve come a long way since then, and I think we should never go back. In June of 2008, 58 years after they met, my two friends were finally able to marry, when the California Supreme Court ruled that same sex couples cannot be denied the fundamental right to marry. Del died two months later. Because of the federal Defense of Marriage Act, DOMA, Phyllis was denied social security survivor benefits, even though her spouse had paid into this basic safety net for her entire working life. Phyl had to rely on the help of friends and fellow activists. In 2013, as you probably know, because you know so much about this, US v. Windsor, the Supreme Court struck DOMA down. Two years later, in Obergefell v. Hodges, the Supreme Court recognized that the fundamental right to marry could not be denied to LGBT Americans. Both decisions were decided by a five to four margin. Justice Ginsburg was in the majority. Justice Scalia dissented in both cases.
Senator Dianne Feinstein: (56:56)
Now, you said in your acceptance speech for this nomination, that Justice Scalia’s philosophy is your philosophy. Do you agree with this particular point of Justice Scalia’s view that the US Constitution does not afford gay people the fundamental right to marry?
Amy Coney Barrett: (57:17)
Senator Feinstein, as I said to Senator Graham at the outset, if I were confirmed, you would be getting Justice Barrett, not Justice Scalia. So I don’t think that anybody should assume that just because justice Scalia decided a decision a certain way, that I would too, but I’m not going to express a view on whether I agree or disagree with Justice Scalia, for the same reasons that I’ve been giving. Justice Ginsburg with her characteristic pithiness used this to describe how a nominee should comport herself at a hearing: “No hints, no previews, no forecasts.” That had been the practice of nominees before her, but everybody calls it the Ginsburg Rule because she stated it so concisely, and it’s been the practice of every nominee since. So I can’t, and I’m sorry to not be able to embrace or disavow Justice Scalia’s position, but I really can’t do that on any point of law.
Senator Diane Feinstein: (00:12)
Well, that’s really too bad because it’s rather a fundamental point for large numbers of people I think in this country. I understand you don’t want to answer these questions directly, but you identify yourself with a Justice, that you like him would be a consistent vote to roll back hard fought freedoms and protections for the LGBT community. And what I was hoping you would say is that this would be a point of difference where those freedoms would be respected, and you haven’t said that.
Judge Amy Coney Barrett: (00:55)
Senator, I have no agenda, and I do want to be clear that I have never discriminated on the basis of sexual preference and would not ever discriminate on the basis of sexual preference. Like racism, I think discrimination is abhorrent. On the questions of law, however, because I’m a sitting judge and because you can’t answer questions without going through the judicial process, can’t give answers to those very specific questions.
Senator Diane Feinstein: (01:26)
Okay, thank you very much. Thanks, Mr. Chairman.
Senator Lindsey Graham: (01:28)
Thanks Senator Feinstein, Senator Grassley.
Senator Chuck Grassley: (01:31)
Judge, I welcome you again and you can rest for a minute because I’ve got some things to say to my colleagues, but more importantly, so people around the country understand what’s going on here. First of all, for your family and friends, I’m sure they’re very proud and they ought to be. I think everybody recognizes your sharp intellect, a deep understanding of, and even great reverence for the Constitution. Your legal experience and public service are impressive. Your dedication to mentoring young students and women in the legal profession ought to be admired by everybody. In all respects, you’re exceptionally qualified to be a justice. Many groups and individuals have written in strong support. So I guess now that the chairman is gone, I’m going to ask as the next one ranking, I got some letters from 21 state Lieutenant Governors and from 20 Secretaries of State that I want to put in the record at this point.
Senator Chuck Grassley: (02:40)
Before I question, I have a few points to make. Yesterday, my Democrat colleagues spoke about their concern that you, Judge, wouldn’t uphold certain laws, including the Affordable Care Act. And that you would strip Americans of their healthcare rights and those protections that come with it. These opponents said that Republicans just want to confirm you so that you, “will carry their policies forward.” Meaning Republican policies forward on the Supreme Court. But this only shows Democrats fundamentally misunderstand what judges are supposed to do. A judge is supposed to interpret laws in an impartial manner, consistent with the Constitution. Republicans aren’t interested in seeing judges, “carry their policies forward.” Republicans want judges to interpret the law and the constitution not make law. We want judges that won’t impose their policies and personal preferences in their decision making, plain and simple.
Senator Chuck Grassley: (04:02)
Policymaking is not the proper role of the judicial branch. That role is reserved for legislative and executive branches. As the judge said, the political branches elected by and accountable to the people because you got a lifetime appointment. And if you do lawmaking, we can’t vote you out of office. Lawmaking’s our job, if people are all like what we do, they can vote us out of office. Some other points on the Affordable Care Act, the Democrats continue to misrepresent or claim to know Barrett’s view on affordable care and access to healthcare. In fact, they made it their entire game plan yesterday. And I suppose today we’ll see it again. But we should dispense with the total fiction the Democrats are pedaling. Apparently her technical concerns with Chief Justice Roberts legal reasoning in the Obama decision disqualifies her. Democrats are painting the judge as heartless and on a mission to scrap the healthcare law. Frankly, that’s absurd.
Senator Chuck Grassley: (05:24)
Not only is Judge Barrett a mother of seven, she had children with pre-existing medical challenges of her own. No one on this committee or anyone has any right to suggest that she doesn’t care about access to healthcare or protection for the vulnerable. Now, getting back to the technical concerns about Robert’s Affordable Care Act opinion. First, and I got four points along this line, her comments dealt with Robert’s statutory interpretation of just one provision of the law. That provision is no longer even in effect. In 2017, Congress zeroed out the so-called tax, the tax connected with the individual mandate. The question before the court this fall are entirely separate. She never ruled on the Affordable Care Act, nor commented on how she’d vote. Meaning the Judge, how she would vote. So it’s pointless to speculate, but we’re going to get a lot of speculation during this election season, just two and a half weeks before the election.
Senator Chuck Grassley: (06:43)
Now second point. Lawyers and legal academics often consider a court reasoning even when they have no disagreement with the outcome of the case. For instance, the New York Times recently reported, Ginsburg, before joining the Supreme Court, “Wasn’t really fond of Roe v. Wade. She didn’t like how it was structured.” I don’t blame or don’t know why Democrats have a different standard for you, Judge Barrett. Now a third point. It’s blatantly inconsistent for the left to use this line of attack. We all know that President Obama said that the ACA legislative mandate was not a tax. Even liberal Jeffrey Toobin said Robert’s argument was, “Not a persuasive one.” So Judge Barrett’s analysis of Robert’s legal reasoning is well inside the mainstream. Now a fourth point, more inconsistency. The same Democrats vilify Judge Barrett as a threat to those with pre-existing conditions.
Senator Chuck Grassley: (08:08)
Well, it seems that those same people just filibustered the COVID relief bill that would have protected pre-existing conditions. They’re the ones that blocked the COVID relief legislation. Republicans stood ready to move forward with that bill and remain ready. Seems to me it’s the other side who really playing politics with healthcare during a pandemic. The truth is Judge Barrett already said, “A judge must apply the law as written.” She further commented, “To decide cases according to the rule of law, beginning to end.” That’s what we should all look for judges to do. Now for my first question, when Justice Scalia came to my office before his confirmation, and I think I brought this up with every nominee to the Supreme Court by Republican or Democrat nominees. I don’t think I brought it up in my private conversation with you, but I always bring up, what’s your attitude about legislative history?
Judge Amy Coney Barrett: (09:27)
Senator Chuck Grassley: (09:28)
Let me ask my question first.
Judge Amy Coney Barrett: (09:29)
Senator Chuck Grassley: (09:29)
Judge Amy Coney Barrett: (09:31)
I thought that was it.
Senator Chuck Grassley: (09:32)
I think you probably know, Judge, how important it is. I want to know how important legislative history is to you. When is it appropriate to look to legislative history, to interpret the statute? And are there some circumstances when more appropriate than other? And I’d like to also give your view on legislative history compared to what I heard from Scalia 35 years ago.
Judge Amy Coney Barrett: (09:59)
Sure. So I’m very comfortable talking about the use of legislative history because that’s a matter of interpretive philosophy. What governs of course, is the text of the statutes. So the legislative history can never supersede the text and it should never substitute for the text of the statute. Justice Scalia as was well-known railed against the use of legislative history. And I think it was because at the time that Justice Scalia went onto the D.C. circuit before he was on the Supreme Court, the use of legislative history had really kind of gotten out of control. And many courts were saying things, Justice Scalia in his book, quotes this line from a brief, “The legislative history being unclear, we turned to that other reliable guide in statutory interpretation, the statute.” And that has things backwards. And so I think Justice Scalia really tried to clean that up and say, listen, the priority is the text. And when the text answers the question, you don’t go to legislative history. And there’s some pragmatic reasons to be careful about doing so.
Judge Amy Coney Barrett: (11:06)
Legislative history can be long. There’s a famous quotation from Judge Levinthal that, “Legislative history is like going to a cocktail party and picking out your friends, can be easy to manipulate because there might be something in there for everyone.” So as a general rule, I don’t look to legislative history when I’m deciding cases. I wouldn’t say that it would never be relevant. Even Justice Scalia himself said that there could be instances. For example, if you were trying to determine whether a term used in a statute, how it was used, if it had a technical meaning, or how it was understood, that that might be an appropriate time to consult legislative history. Or Justice Scalia himself consulted it when he was trying to determine whether there had been an error in the way the statute was drafted. He looked at legislative history to see whether what seemed unthinkable actually was unthinkable.
Senator Chuck Grassley: (12:01)
Now I’d like to go to a specific case. I’d like to go to United States v. Uarte, which involved the interpretation of Section 403 of the First Step Act, which I had a big part along with Senator Lee and Senator Durbin in getting that passed in 2018. This is the most significant criminal justice legislation in a generation, our criminal justice system can’t just punish and deter. It must also rehabilitate and promote successful re-entry into society. The First Step Act accomplished these goals through prison and sentencing reform. It was well-known that the goal of the First Step Act was to make smart and cost-effective changes to the criminal code and to reduce a risk of recidivism. So I want to ask you about your dissent in this case, the issue was whether the sentencing reform provision of the First Step Act applied to a defendant whose sentence had been vacated. Here the defendant had been convicted, but not re-sentenced at the time of the First Step Act becoming law.
Senator Chuck Grassley: (13:18)
The majority opinion cited the plain meaning of the First Step Act in congressional intent in finding that Section 403 would apply to a defendant with a vacated sentence. Your dissent, as I understand it, argued among other things that congressional intent shouldn’t be heavily relied on, “Every statute requires a resolution of competing policy interest.” President Trump signed the First Step Act into law only two years ago. So wouldn’t re-referencing congressional intent be accessible and relevant? And then another question, why did you find the majority relying on legislative history unpersuasive?
Judge Amy Coney Barrett: (14:05)
So we did, the majority. It was a very, very difficult case. It was voted on, on bunk by our full court. And the quote from my dissent that you’re pointing to was actually that we had a dispute about what the plain text of the statute required. And so that portion of my dissent that you just read was saying that I thought that the majority had permitted the policy goals of the act to supersede the text. And in dissent, I argued that the text drew the line after someone had been sentenced. So if someone had already been sentenced on the date of the First Steps Act’s passage and the relevant language was, if a sentence had already been imposed. I thought with my dissenting colleagues, and this was consistent with the approach the third circuit had already taken that, that meant if the person had already been through sentencing. And this case involved a re-sentencing, and re-sentencing can happen years after. And so it didn’t seem to my dissenting colleagues and I that looking in the statute that the plain language of the text supported the majority’s approach to it.
Senator Chuck Grassley: (15:22)
Now I think on my next question on the same case, you may have just partially answered it, but let me go ahead with my lead in, and then also a question. Both the majority and your dissent in the case reviewed 403 of the Act under a plain reading of the text. As an author and leader in this law’s passage, I’d like to discuss how a plain reading of the statute could lead to varying outcomes. The section in question contemplates, when a sentence has been imposed on a defendant, according to the text’s statute and relevant case law, a defendant sentence, if vacated creates a clean slate. That means defendant is placed in the same position as if he had never been sentenced. But your dissent comes to the opposite conclusion on whether a sentence has been imposed. Note, that I agree with you that the laws need to be read and interpreted literally. So my question is this, how could we come to different conclusions?
Judge Amy Coney Barrett: (16:28)
Well, that language that it did not apply to defendants on whom sentences had already been imposed, my dissenting colleagues and I said, well, the language is sentences. It doesn’t say invalid sentences. And one could certainly say, if asked if someone had been sentenced, yes, he was sentenced, but that sentence was later vacated. And you’re right that the majority relied heavily on this clean slate principle. But in my review of the law, this clean slate principle wasn’t really present because the sentencing reform act for example, instructs district courts applying the guidelines at sentencing to ply those that were in effect on the date of the original sentencing. So I thought that the clean slate principle, they were pushing a little too hard on it. And there’s certainly unfairness, the First Step Act, it’s policy is clearly to bring justice to sentencing. But whenever you draw a line at who gets the benefit of a law, and this is especially acutely true in the sentencing area, it’s very difficult.
Judge Amy Coney Barrett: (17:40)
And some people ran on either side of the line will not get the benefit of the law wherever you draw it. So, for example, in this case, Mr. Uarte had a co-defendant named Sparkman, his case came up right behind … together. They had been tried together and initially sentenced together, but Uarte’s appeal took longer to resolve, or his re-sentencing took longer because of a lot of delays. So there was unfairness there too in the majority’s approach because Uarte, despite the fact that he was more culpable than Sparkman, wound up with a sentence that was like 15 years less.
Senator Chuck Grassley: (18:19)
That’s the end of my questioning on that, but let me make a comment before I go to my next question, my position has always been that legislative history can be instructive with respect to the intent of the statute so judges should not completely disregard it. Certainly I acknowledge that the legislative branch can be more careful about drafting laws. But I also think that judges should pay attention to congressional intent as set forth in history, when there might be a dispute about how to interpret the statute. Justice Ginsburg at her hearing quote, and you’ve discussed this a little bit already, but I think it deserves emphasis because you’re going to go through a lot of this business of maybe not being … and I know legitimately not being able to comment on a prospective case. So she said, “A judge sworn to decide impartiality can offer no forecasts, no hints for what would show not only disregard for the specifics of this particular case, it would display disdain for the entire judicial process.”
Senator Chuck Grassley: (19:29)
Obviously, we all know that that’s the Ginsburg standard. The underlying reason for this rule is that making promises or giving hints on how a judge would rule in a case undermines the very independence of our system. But you’re going to be asked about your personal views as you just have been on various topics, and how you might correctly decide. Of course, the judicial nominee should never promise their future votes on the bench in exchange for the president’s nomination or a senator’s support, you’d be showing the opposite of independence. So my question, so I ask you, do you agree with the Ginsburg standard that it goes to the question of judicial branches independence for legislative history, and all you got to do is say yes, because I’ve heard you talk about it.
Judge Amy Coney Barrett: (20:27)
Yes, I agree the Ginsburg rule reinforces judicial independence.
Senator Chuck Grassley: (20:33)
Yeah. Now here’s something that a lot of people’s suspicion. So I want to ask you, have you made any promises or guarantees to anyone about how you might rule on a case or issue that might come before you if you’re confirmed to the Supreme Court?
Judge Amy Coney Barrett: (20:51)
I want to be very, very clear about this Senator Grassley. The answer is no. And I submitted a questionnaire to this committee in which I said, no, no one ever talked about any case with me, no one on the executive branch side of it. One reason you asked that question, I think as a committee, is that you want to know that no nominee has made any pre-commitments. And so just as I didn’t make any pre-commitments and was not asked to make any commitments on the executive branch side, I can’t make any pre-commitments to this body either. It would be inconsistent with judicial independence.
Senator Chuck Grassley: (21:25)
No, I know the answer to my last question and then Mr. Chairman, I’m going to reserve the rest of my time. The Democrats claim that you’re being put on the Supreme Court so you can vote to repeal the Affordable Care Act. Is that your agenda, if confirmed, is your goal repealing the Affordable Care Act? Have you committed to the President or anyone else that you will vote to repeal the Affordable Care Act if confirmed to the court?
Judge Amy Coney Barrett: (21:50)
Absolutely not. I was never asked and if I had’ve been, that would have been a short conversation.
Senator Chuck Grassley: (21:55)
I think that your record shows that you’ll be a faithful judge that takes each case seriously and approach each case in a non-biased way rather than with the policy agenda in mind. Is it a fair … we can reserve our time?
Senator Lindsey Graham: (22:10)
Senator Chuck Grassley: (22:10)
Senator Lindsey Graham: (22:11)
Senator Diane Feinstein: (22:12)
Mr. Chairman, letters for the record [inaudible 00:22:14].
Senator Lindsey Graham: (22:13)
I’ll introduce … the letters by Senator Feinstein will be introduced into the record without objection. Senator Leahy, are you with us?
Senator Patrick Leahy: (22:24)
I think I am. Do you hear me there?
Senator Lindsey Graham: (22:26)
Yes, sir, see if we can get you up on the screen here. There you go. Floor is yours.
Senator Patrick Leahy: (22:34)
Thank you, thank you very much. And Judge, I was watching as you introduced your family, thank you for doing that. It’s obvious that family is very important to you as it should be. My wife and I have been married for 58 years and our children, and our grandchildren are the most important things in our life. And I was pleased to see you introduce the family. Now as a senator, of course, another important part of my life is referring to and representing the people of Vermont. And let me talk to you about some of the things I’ve been hearing from Vermonters. And you have to understand in Vermont, Vermonters just walk up to the grocery store or coming out of church or whatever, and perfectly happy to express their views. And they’re concerned about what the Republican’s Affordable Care Act lawsuit on November 10th would mean for them. Now, do you know how many Americans have attained insurance through the Affordable Care Act?
Judge Amy Coney Barrett: (23:45)
I do not.
Senator Patrick Leahy: (23:47)
It’s more than 20 million. And do you know how many children under the age of 26 stay on their parents’ insurance because of the Affordable Care Act?
Judge Amy Coney Barrett: (23:59)
I do not.
Senator Patrick Leahy: (24:00)
It’s two point three million. And do you know how many Americans are covered under the Affordable Care Act’s Medicaid expansion?
Judge Amy Coney Barrett: (24:10)
I do not.
Senator Patrick Leahy: (24:12)
It’s a little more than 15 million. And I look at that because I look at the people who called me from Vermont. I think of Alex Johnson, she’s a single mother, she’s a childhood cancer survivor. She works as a nanny in South Burlington, Vermont. She relies on Medicaid for her doctor’s visits or blood drawings, or other testing. All that done to make sure her leukemia stays in remission. She tells me she stays awake at night worrying about losing Medicaid. Now, if the Republicans are successful in what they’re trying to do on November 10th, then Alex and actually 60,600 other Vermonters enrolled in Medicaid expansion are going to be left behind. [inaudible 00:25:12] contract COVID-19, that’s seen as a pre-existing condition. Do you know approximately how many million Americans have tested positive for the coronavirus and survive?
Judge Amy Coney Barrett: (25:28)
I do not.
Senator Patrick Leahy: (25:29)
It’s more than 7 million, 700,000, those are people now considered to have a pre-existing condition. And one of the most common pre-existing conditions is diabetes. The CDC estimates that 34 million Americans, that’s about one in 10 Americans have diabetes. This shows that the ACA’s Medicaid expansion is the single most important factor for expanding access to affordable insulin. Leslie, a Vermonter diagnosed with late onset type 1 diabetes at age of 25. For years, she’s dependent on Medicaid to keep her alive and out of bankruptcy. Now, President Trump recently claimed that he’s made insulin as cheap as water. I wish he had told the truth of that, we all know it’s not. Leslie now has insurance to pay for insulin. And without this insurance, do you know how much … because unlike what the President says, insulin is not as cheap as water. Do you have an idea how much Leslie’s out-of-pocket expenses for insulin would increase?
Judge Amy Coney Barrett: (26:58)
No, I do not.
Senator Patrick Leahy: (27:02)
And I wouldn’t expect you to, there’s no reason why you should. But Leslie’s costs would more than triple, would go up by $11,215 a year. That’s in a state where the per capita income is $33,000. So I’m not suggesting that you’re callous or indifferent to the consequences if the Affordable Care Act is overturned, you know that these are real cases and I think you’re a sympathetic person. But I do believe that the President selected you because he wanted somebody with your philosophy and he had a reason for it. Some are going to pretend that’s a mystery and that’s what some of my colleagues have [inaudible 00:27:53] what a Justice Barrett would do when the Supreme Court takes up the leaves attack in the ACA. President Trump has made crystal clear, he’s promised his nominees would overturn the ACA. It’s even in the official Republican Party platform. And when he said, will the case be argued next month, he said, “We want to terminate healthcare under Obamacare, ACA.” And within hours of nominating you, he again repeated that the ACA would be overturned. I know I mentioned my friend the chairman, Senator Graham knows the President as well as anyone here. He goes golfing with him and he spends a lot of time with him. And I think Chairman Graham knows that the President would not repeatedly promise the American people, that his judges will overturn the ACA if he didn’t mean it. I think Senator Graham would have to agree that the President’s confident Judge Barrett would side with him on November 10. That’s not necessarily a question for either one of you but of course the chairman has an opportunity to respond on his time if he wants. But I think we know the President’s confidence. There’s not been an issue in the last decade that’s animated Republicans in Congress more than the zeal to overturn the Affordable Care Act. In fact, I counted it the other day, I was surprised at the answers.
Senator Patrick Leahy: (29:44)
You know, Judge Barrett that Republicans in Congress have voted to repeal or gut the ACA more than 70 times? Seven, oh times in the last 10 years. And when they failed, they turned to the court. Do you know how many Republicans on this committee have joined amicus briefs urging courts to overturn the ACA in NFIB v. Sebelius and King v. Burwell?
Judge Amy Coney Barrett: (30:15)
How many Republicans had voted, was that the question?
Senator Patrick Leahy: (30:19)
Do you know how many Republicans in this committee have joined an amicus briefs urging the courts overturn the ACA?
Judge Amy Coney Barrett: (30:29)
I don’t, I’m having a little bit of trouble hearing Senator Leahy. Is there a way for the volume to be turned up?
Senator Lindsey Graham: (30:36)
Senator Patrick Leahy: (30:41)
I am sorry for that.
Senator Lindsey Graham: (30:43)
It’s on our end Senator Leahy, that’s okay. You can repeat the question.
Senator Patrick Leahy: (30:47)
How’s it coming through now?
Senator Lindsey Graham: (30:53)
Judge Amy Coney Barrett: (30:54)
Very well, thank you.
Senator Patrick Leahy: (30:57)
As you know, I’ve stayed away simply because I don’t think it is safe for you or anybody else to be there. But my question is, do you know how many times Republicans on the committee you’re sitting before have joined the amicus briefs urging courts overturn the Affordable Care Act?
Judge Amy Coney Barrett: (31:20)
I do not know.
Senator Patrick Leahy: (31:23)
It’s at least nine by my account. In fact, they’ve already weighed in on the November 10 case. Two weeks ago, the Senate voted on whether to side with President Trump in Texas v. California. And 11 of the 12 senators on this committee sided with the Trump administration and asked to kill the ACA. Now I understand that you will not share your views on Texas v. California. I know you look at judicial candidate [inaudible 00:32:01] and you’re concerned that commenting may give future [inaudible 00:32:06] appeared before you an indication of which way you’d rule. Is that correct?
Judge Amy Coney Barrett: (32:14)
Yes, that is correct.
Senator Patrick Leahy: (32:17)
Okay. My concern is that you’ve already given us every indication. Every time you weighed in, it hasn’t even been close. You repeatedly disagreed with Chief Justice Roberts. From what you said, you clearly believe that the statute is unconstitutional. The President has made very clear he expects that you side with him. And let me tell you another area where he expects you to side with him. He expects you to side with him in an election dispute. He says he needs a ninth justice because he’s counting on the court to look at the ballots. And he says, the election will be rigged. The recusal statute, 28 USC 455 requires recusal where partiality might reasonably be questioned. Now, when the President declares he needs his nominate to secure his reelection, and then the nominee is rammed through the Senate in record time during the middle of an election. Some are going to question that nominee’s impartiality. To protect confidence in both you and the court, would you commit to recuse yourself from any dispute that rises out of the 2020 presidential election?
Senator Patrick Leahy: (34:02)
… the 2020 presidential election.
Judge Amy Coney Barrett: (34:04)
Senator Leahy, I want to begin by making two very important points and they have to do with the ACA and with any election dispute that may or may not arise. I have had no conversation with the President or any of his staff on how I might rule in that case. It would be a gross violation of judicial independence for me to make any such commitment or for me to be asked about that case and how I would rule. I also think it would be a complete violation of the independence of the judiciary for anyone to put a Justice on the court as a means of obtaining a particular result, and that’s why, as I was mentioning, I think to Senator Grassley, that the questionnaire that I fill out for this committee makes clear that I have made no pre-commitments to anyone about how I would decide a case. That’s out of respect for Article 3 and its designation of the judiciary as a co-equal and independent branch of government.
Judge Amy Coney Barrett: (35:02)
On the recusal question-
Senator Patrick Leahy: (35:03)
And I might say that you gave a similar answer when I talked with you and Mr. [inaudible 00:01:14]. I had a question of course, because one of the members of the Judiciary Committee said he would not support you unless he had a commitment that you would vote that way.
Judge Amy Coney Barrett: (35:27)
Vote on the election?
Senator Patrick Leahy: (35:29)
On another case, Roe vs. Wade, and I understand what you’re saying is notwithstanding what a member of this committee said, you have not made a commitment to anybody. Is that correct?
Judge Amy Coney Barrett: (35:41)
Senator Leahy, let me be clear. I have made no commitment to anyone, not in this Senate, not over at the White House, about how I would decide any case.
Senator Patrick Leahy: (35:50)
And the reason I ask is we also have the question of appearance. Now, Judge Joan Larsen of the Sixth Circuit sat next to you during your 2017 hearing. She was confronted with this issue as a judge on the Michigan Supreme Court in 2016. Then President-elect Trump challenged a ballot recount. Judge Larson was on his short list for the Supreme Court at the time. She found that being on the short list was a conflict and it required her recusal. You were also on the short list, then you were actually chosen. Now he’s not the President-elect, he’s the President. And then the President makes a similar thing as he did that Judge Larson looked at. He’s counting on you to deliver him the election. Judge Larson said that was a conflict for her and would have to recuse. You do not find his comments a conflict for you. Is that correct?
Judge Amy Coney Barrett: (37:06)
Senator Leahy, I’m not familiar with Judge Larson’s decision, but she clearly made it once it was presented to her in the context of an actual case where she had to weigh her obligations under 28 U.S.C. 455. If presented to me, I would, like Judge Larson, apply that statute, and I recently read a description by Justice Ginsburg of the process that Supreme Court justices go through in deciding whether to recuse. And it involves not only reading the statute, looking at the precedent, consulting counsel if necessary, but the crucial last step is that while it is always the decision of an individual justice, it always happens after consultation with the full court. So I can’t offer an opinion on recusal without short-circuiting that entire process.
Senator Patrick Leahy: (38:03)
Well, I think what I worry about, and I said over and over again, that if the courts are politicized, from the Supreme Court down through other courts, and I’ve [inaudible 00:38:13] in cases in federal courts, I’ve always assumed the judges are totally impartial no matter what president had nominated. But this president has not been subtle in the expected nominee to side with him in election dispute. I’m thinking of the credibility of our federal courts. And I had hoped you would at least consider that. The President has said he needs a ninth Justice because he’s counting on the court to look at the ballots in case he loses, because if he lost, and that the Democrats had rigged the election. They recusal statue, as you know as well as anyone in 28 U.S.C. 455 requires a Justice recused herself in any proceeding in which impartiality might reasonably be questioned.
Senator Patrick Leahy: (39:14)
Now, whether you like it or not, and I suspect you probably do not, the President has placed both you and the Supreme Court in the worst of positions. And so let me ask you a different type of question. I assume you agree with me that it’s critical for Americans to have confidence in the Supreme Court. Is that true?
Judge Amy Coney Barrett: (39:43)
That is true. And I agree with your earlier statement that the courts should not be politicized.
Senator Patrick Leahy: (39:49)
Thank you. And I voted for an awful lot of Republican and Democratic nominated Justices. I did, of course, for Chief Justice Roberts because I wanted to keep Supreme Court and other courts out of politics. But when the President repeatedly declares is he needs his nominee as well a way of securing his re-election, and that nominee is then ran through the Senate in the middle of that election, well, you can see where the nominees impartiality might be questioned. So my request is in protecting confidence in both you and the Court, are you able to commit to recuse yourself from disputes arise out of the 2020 presidential election?
Judge Amy Coney Barrett: (40:54)
Senator Leahy, I commit to you to fully and faithfully applying the law of recusal and part of that law is to consider any appearance questions. And I will apply the factors that other Justices have before me in determining whether the circumstances require my recusal or not. But I can’t offer legal conclusion right now about the outcome of the decision I would reach.
Senator Patrick Leahy: (41:17)
Which is sort of [inaudible 00:41:20] polite response on recusal. So let me ask you another question. You laid out the case for blocking President Obama’s Supreme Court nominee, Judge Barrett Garland for 10 months during an election year. You have [inaudible 00:41:33] prior to Justice Scalia was the staunchest conservative on the court, and Justice Scalia and I were personal friends. I had voted for him. I agree with you on that. You claimed that the moderate eminently qualified Judge Garland would dramatically flip the balance of the court. You said it was not a lateral move. That’s your quote. It was not a lateral move. So your nominated to replace Justice Ginsburg, perhaps the stanchest champion for civil rights of the Court. You claimed that [inaudible 00:42:06] Justice Scalia is your own. Of course, he was the opposite side of Justice Ginsburg in countless civil rights cases. Would you say that replacing Justice Ginsburg by yourself is not a lateral move like you had urged when you supported the blocking of President Obama’s nominee, Judge Garland?
Judge Amy Coney Barrett: (42:35)
Senator Leahy, I want to be very clear. I think that’s not quite what I said in the interview. It was an interview that I gave shortly after Justice Scalia’s death. And at that time, both sides of the aisle were arguing that precedent supported their decision. And I said while I had not done the research myself, my understanding of the statistics was that neither side could claim precedent, that this was a decision that was the political branches to make. And I didn’t say which way they should go. I simply said it was the Senate’s call. I didn’t advocate or publicly support the blockade of Judge Garland’s nomination as you’re suggesting.
Senator Patrick Leahy: (43:19)
That’s not what I’m suggesting. You said it was a lateral. It would not be a lateral move.
Judge Amy Coney Barrett: (43:28)
What I was suggesting is that it was unsurprising that there was resistance as a political matter to that nomination because it would change the balance of the court. It’s just a-
Senator Patrick Leahy: (43:43)
Well, I was surprised, I was surprised there was resistance and surprised there’s so many, at that time, Republican members of the Judiciary Committee who had stated publicly before the vacancy that they thought Garland would be a good person to have on the Court, and somebody who could appeal to both conservatives, liberals and moderates. But-
Judge Amy Coney Barrett: (44:08)
I have full respect for Judge Garland.
Senator Patrick Leahy: (44:13)
I beg your pardon?
Judge Amy Coney Barrett: (44:19)
I’m sorry. I missed the first part. Are they right to say… Could you repeat the question?
Senator Patrick Leahy: (44:26)
No, it was not a question. I was just saying that we had many members of our committee, number of Republicans, who prior to the vacancy had been saying Garland would be a good person for President Obama to nominate because he could appeal to moderates, conservatives and liberals. And then of course their response was, well, we can’t have a nominee confirmed by one party that’s in control of the Senate and nominated by a President of another party. I pointed out I was here when Democrats controlled the Senate and President Reagan nominated Anthony Kennedy, and in an election year, Democrats confirmed him.
Senator Patrick Leahy: (45:24)
But let me go to another area. Three judge panel of the Seventh Circuit struck down three provisions of an Indiana law restricting reproductive rights. State of Indiana requests an en banc review of just one of the provisions, the fetal tissue disposition provision. Of course then whether review the case, leaving intact the panel decision striking down the law, you joined Judge Eastorbrook in his dissent. But then the dissent went out of its way to address a separate provision, not before the Court, the so-called being your dissent called a eugenic statute.
Senator Patrick Leahy: (46:18)
Judge Barrett, the issue before your Court was a narrow one. Why didn’t you limit your descent to the one issue the state of Indiana was asking you to review?
Judge Amy Coney Barrett: (46:32)
So we dissenters from that denial of rehearing en banc. First of all, dissented as you say on the fetal remains disposition portion, which the Supreme Court wound up summarily reversing the panel. On the eugenics portion of the bill, it’s true that the state of Indiana did not seek en banc rehearing on that, but we had many other states enter the case as a Miki, urging us to take that claim up. And what Judge Easterbrook’s dissent did was explain why he actually thought it was an open question, but one best left to the Supreme Court. And we didn’t reach any conclusion with respect to it
Senator Patrick Leahy: (47:08)
Well, and whatever position you took would not have changed the final decision of the Court. Now in 2006, you signed an open letter and it is published in the South Bend Tribune. On one side, the advertisement describes the legacy of Roe vs. Wade is apparent. On the other, what you signed, is stated that you oppose abortion [inaudible 00:13:46], defend the right to life from fertilization to natural death, and I had circuit voted for some judges to take that position, but what not mentioned in the letter, the organization that led the effort believes that in vitro fertilization, IVF, is equivalent to manslaughter and should be prosecuted. Do you agree with them that IVF is tantamount to manslaughter?
Judge Amy Coney Barrett: (48:20)
Senator, the statement that I signed, as you said, simply said, we, I signed it on the way out of church, it was consistent with the views of my church, and it simply said we support the right to life from conception to natural death. It took no position on IVF.
Senator Patrick Leahy: (48:40)
No, I understand that. And I said, I voted for judges who take the same position you do. But I’m asking, do you agree with the same Joseph County Right to Life that sponsored ad that IVF is handed out to manslaughter?
Judge Amy Coney Barrett: (49:04)
Well, Senator, I signed the statement that you and I have just discussed and you’re right, that the St. Joseph County Right to Life ran an ad on the next page. But I didn’t, I don’t even think the IVF view that you’re expressing was on that page. But regardless, I’ve never expressed a view on it. And for the reasons that I’ve already stated, I can’t take policy positions or express my personal views before the committee, because my personal views don’t have anything to do with how I would decide cases. And I don’t want anybody to be unclear about that.
Senator Patrick Leahy: (49:35)
Well, I mean to talk about some of the positions you have taken before you became a judge, who are paid by the Alliance Defending Freedom, ADF, for five electors. You gave them originalism at the Blackstone Legal Fellowship. Now I recall being asked about some of their controversies. Were you aware of ADF’s decades on efforts to re-criminalize homosexuality?
Judge Amy Coney Barrett: (50:16)
I am not aware of those efforts. No.
Senator Patrick Leahy: (50:21)
Okay. One of the reading materials they had for the program that you lectured to several times, spoke at that, in fact that they had filed a brief in Lawrence versus Texas in support of state laws punishing a private homosexual activity. They celebrated when India restored a law punishing sodomy to 10 years in prison. Now whether you believe that being gay is right or wrong is irrelevant to me. But my concern is you work with an organization working to criminalize people for loving a person that they are in love with. So that’s what worried me.
Judge Amy Coney Barrett: (51:29)
I wasn’t sure if you wanted me to answer that, you know, my-
Senator Patrick Leahy: (51:32)
Yeah, go ahead.
Judge Amy Coney Barrett: (51:36)
My experience with the Blackstone program at which I spoke was a wonderful one. It gathers best and brightest Christian law students from around the country. And as you said, I gave a one hour lecture on originalism. I didn’t read all of the material that the students were given to read. That had nothing to do with my lecture. I enjoyed teaching the students about what my specialty was, which is constitutional law, and nothing about any of my interactions with anyone involved in the Blackstone program were ever indicative of any kind of discrimination on the basis of anything.
Senator Patrick Leahy: (52:11)
Well, as you know, same sex marriage, for example, and Senator Feinstein mentioned this at the beginning, is legal, certainly legal in my state. Has been for some time. Do you feel that it should be a crime.
Judge Amy Coney Barrett: (52:30)
Same sex marriage?
Senator Patrick Leahy: (52:32)
Judge Amy Coney Barrett: (52:32)
Obergefell clearly says that there is a constitutional right to same-sex marriage.
Senator Patrick Leahy: (52:40)
And do you agree with that stare decisis?
Judge Amy Coney Barrett: (52:43)
Well, Senator, for the reasons that I’ve already said, I’m not going to, as Justice Kagan put it, give a thumbs up or thumbs down to any particular precedent. It’s precedent of the Supreme Court that gives same-sex couples the right to marry.
Senator Patrick Leahy: (52:55)
Well, you mentioned Justice Kagan, [inaudible 00:53:00] an opinion, and there’s not enough that five justices believe a precedent is wrong, reversing course to mandate special justification over or above the belief that the precedent was wrongly decided. Do you agree with that?
Judge Amy Coney Barrett: (53:15)
I do agree with that. The doctrine of stare decisis itself requires that.
Senator Patrick Leahy: (53:24)
Having relied on stare decisis in many of my arguments before Courts of Appeals, I thank you for your answer. Chief Justice Roberts-
Senator Lindsey Graham: (53:35)
Senator Leahy, I don’t mean to interrupt. I know you don’t have a clock in front of you, but we’re about a little over a minute over. So if you could-
Senator Patrick Leahy: (53:43)
I am sorry, Mr. Chairman. I do not ever go over.
Senator Lindsey Graham: (53:47)
No. I understand. I totally understand.
Senator Patrick Leahy: (53:49)
I appreciate it. And I will look forward to the next round of questioning.
Senator Lindsey Graham: (53:54)
Thank you. We’ll make sure that happens. Very briefly forego to Senator Cornyn. Senator Leahy mentioned the time with the President, and I think probably all of us on this side were consulted by the President regarding how to fill the opening. He gave me a small list of names, all women. You were on it. I was enthusiastic about everybody and very enthusiastic about your nomination by the President. Play a lot of golf with the President, I guess. I’ve enjoyed it. We talk about a lot on the golf course, some policy, killing Soleimani. We talked about that. That was an interesting discussion. I promise you. I’ve never talked about severability with the President. Senator Cornyn.
Senator John Cornyn: (54:40)
Speak for yourself. Good morning, your honor.
Judge Amy Coney Barrett: (54:46)
Good morning, Senator Cornyn.
Senator John Cornyn: (54:48)
You know, most of us have multiple notebooks and notes and books and things like that in front of us. Can you hold up what you’ve been referring to in answering our questions? Is there anything on it?
Judge Amy Coney Barrett: (55:02)
That letterhead that says United States Senate.
Senator John Cornyn: (55:06)
That’s impressive. Well, Judge, the best I can understand the objections to your nomination are not to your qualifications or your experience or training, but it’s that you have, or you will violate your oath of office.
Judge Amy Coney Barrett: (55:31)
Got a law, a government of laws, not of men.
Senator John Cornyn: (55:37)
Well, Judge Barrett, I’m almost through, but I can’t pass up the opportunity to ask you a question about the establishment clause I did with Justice Kavanaugh and Justice Gorsuch as well. It’s born out of my frustration. One of the couple of times I had a chance as Attorney General of Texas to argue before the Supreme Court, I argued in a case called Santa Fe Independent School District versus DOE. This was about a commonplace practice where before us football games in Texas, students would volunteer to offer invocation or an inspirational poem or saying, or something like that. The ACLU sued the school district and obviously it made its way all the way to the Supreme Court. And I’m not going to ask you your opinion on the outcome of the case, but what troubles me the most, what troubled me the most about that experience is when the Supreme Court struck down or held that practice unconstitutional and in violation of the establishment clause. Chief Justice Rehnquist said the constitution requires neutrality toward religion, but the Court’s approach speaks of hostility toward religion. Could you just talk a little bit about the establishment clause generally with not in regard to any particular set of facts, but sort of what the Courts over time have tried to do to enforce the mandate of the constitution?
Judge Amy Coney Barrett: (57:18)
Well, Senator Cornyn, when I interviewed for my job with Justice Scalia, he asked what area of the Court’s precedent that I thought needed to be abetter organized or that sort of thing. And off the cuff, I said, “Well, gosh, the first amendment.” And he said, “Well, what do you mean?” And I fell down a rabbit hole of trying to explain, without success, because it is a very complicated area of the law, how one might see one’s way through the thicket of balancing the establishment clause against the free exercise clause. It’s a notoriously difficult area of the law. And to the extent that there is tension in the courts cases-
Senator Dick Durbin: (58:01)
The Supreme Court nominee to do politically for him, that’s where it comes from. That’s where it originated. And you have said very clearly today, without equivocation, you are not going to be influenced by President Trump’s importuning or the importuning of this committee or anyone else, which is what we expect you to say. But this notion that this whole idea of you’re being used for political purposes is a Democratic creation. Read the tweets. And you have plenty to work with. Read the tweets.
Senator Dick Durbin: (58:33)
The second thing I would like to say is I’m not going to spend a lot of time defending the Affordable Care Act, although I think it’s the most important single vote I’ve cast as a member of Congress period. But I will say that when the Chairman opened up on it and said what he did, I was puzzled. Three states get 35% of the money. How can that possibly be true? Well, it turns out because those states decided to extend Medicaid coverage to the people who lived in the states and his did not. And as a consequence, fewer people in South Carolina have the protection of health insurance. And those that do are paying for their services and those that don’t are not, which imperils hospitals and others in the process.
Senator Dick Durbin: (59:19)
So I would say there is an explanation as to why some states are spending more and incidentally, there was a Republican governor of your state, Indiana, by the name of Mike Pence, who decided to break with other Republican governors and extend Medicaid coverage under the Affordable Care Act. I think it was the right thing to do for Indiana as it was for Illinois. But that’s part of the reasoning.
Senator Dick Durbin: (59:40)
Let me just say that the Affordable Care Act really is at the heart of this, as you can tell, on the Democratic side. We really believe the Supreme Court’s consideration of that case could literally change America for millions of people. I have with me today another group I’d like you to at least be aware of, because they’re pretty amazing people. But this is the Williams family. They live in Naperville, not too far from Chicago. Kathy and Les Williams have four sons from left to right. Matt, Joey, Tommy, and Mikey. Matt who’s 27 was diagnosed with Type One diabetes when he was 13. The other three Williams boys were all born with cystic fibrosis. Joey is 24. Mikey’s 21. Sadly, Mikey’s twin Tommy, after this picture was taken, passed away in January 2019 from complications. This is the last photo was ever taken of their full family.
Senator Dick Durbin: (01:00:36)
Here’s what they wrote me. “We cannot imagine having to go through losing another child. People with cystic fibrosis required daily medication, regular doctor visit, access to high quality specialized care. That means people with pre-existing conditions like cystic fibrosis cannot be discriminated against. The ACA’s protections ensure a ban on annual and lifetime caps and enforce the requirement that insurers cover essential health benefits, such as hospitalizations or mental health services. People with CF and other pre-existing conditions need adequate affordable health care to live longer, healthier lives.”
Senator Dick Durbin: (01:01:12)
That’s why we keep bringing this up, real people that we run into all the time. There’s a chart here I’d like to show it to you while we’re at it. On the Republican side, there’s some obvious controversy as to whether we’re right or wrong, but there are an awful lot of people in each of the states represented by our Republican senators who have their health care and literally in some cases, their lives hanging in the balance. South Carolina, 242,000 people would lose their insurance coverage if the affordable care act were eliminated. Two million living in that state have pre-existing conditions. You could imagine the list goes on. Thank you.
Senator Dick Durbin: (01:01:51)
Here’s what it comes down to. You’ve been unequivocal and being critical of the decisions both in NFIB Sebelius and the King Burwell. And we naturally draw the conclusion there’s going to be a third strike when it comes to Texas and California. You said it won’t affect pre-existing conditions. If the petitioners have their way, there will not be an Affordable Care Act to protect pre-existing conditions on the severability question. So give us an insight how you can be so unequivocal in opposing the majority decisions in NFIB Sibelius and in King and Burwell, but have an open mind when it comes to the future of the affordable care act.
Judge Amy Coney Barrett: (01:02:37)
Sure. Thank you for that question, Senator Durbin, because it gives me an opportunity to make my position clear. When I wrote, and add this was as a law professor about those decisions, I did critique the statutory interpretation of the majority opinions. And as I’ve mentioned before, my description of them was consistent with the way that Chief Justice Roberts described the statutory question. But I think that your concern is that because I critiqued the statutory reasoning, that I’m hostile to the ACA, and that because I’m hostile to the ACA, that I would decide a case a particular way. And I assure you that I am not. I’m not hostile to the ACA. I’m not hostile to any statute that you pass.
Judge Amy Coney Barrett: (01:03:26)
And the cases on which I commented, and we can talk at another time, I guess, about the context, the distinctions between academic writing and judicial decision-making, but those were on entirely different issues. So to assume that because I critiqued the interpretation of the mandate or the phrase established by a state means that on the entirely different legal question of severability, I would reach a particular result, just assumes that I’m hostile. And that’s not the case. I apply the law. I follow the law. You make the policy.
Senator John Cornyn: (01:04:02)
So et’s talk about that for a moment from a different issue perspective. Bear with me for a couple of questions. Have you seen the George Floyd video?
Judge Amy Coney Barrett: (01:04:11)
Senator John Cornyn: (01:04:13)
What impact did it have on you?
Judge Amy Coney Barrett: (01:04:17)
Senator, as you might imagine, given that I have two black children, that was very, very personal for my family. Jesse was with the boys on a camping trip out in South Dakota, so I was there and my 17 year old daughter, Vivian, who’s adopted from Haiti, all of this was erupting. It was very difficult for her. We wept together in my room and then it was also difficult for my daughter, Juliette, who’s 10. I had to try to explain some of this to them. I mean, my children to this point in their lives, have had the benefit of growing up in a cocoon where they have not yet experienced hatred or violence. And for Vivian to understand that there would be a risk to her brother or the son she might have one day of that kind of brutality has been an ongoing conversation. And it’s a difficult one for us, like it is for Americans all over the country.
Senator John Cornyn: (01:05:19)
And so I’d like to ask you, as an originalist who obviously has a passion for history, I can’t imagine that you could separate the two, to reflect on the history of this country. Where are we today when it comes to the issue of race? Some argue it’s fine. Everything’s fine and you don’t have to even teach children about the history of slavery or discrimination. Others say there’s implicit bias in so many aspects of American life that we have to be very candid about and address. Others, go further and say, no, it’s systemic racism that’s built into America and we have to be much more pointed in our addressing it. How do you feel?
Judge Amy Coney Barrett: (01:06:04)
So I think it is an entirely uncontroversial and obvious statement given, as we just talked about the George Floyd video, that racism persists in our country. As to putting my finger on the nature of the problem, whether, as you say, it’s just outright or systemic racism, or how to tackle the issue of making it better, those things are policy questions. They’re hotly, contested policy questions that have been in the news and discussed all summer. So while as I did share my personal experience, I’m very happy to discuss that the reaction our family had to the George Floyd video, giving broader statements or making broader diagnoses about the problem of racism is kind of beyond what I’m capable of doing as a judge.
Senator John Cornyn: (01:07:03)
Well, I would doubt that. I just don’t believe you can be as passionate about originalism and the history behind language that we’ve had for decades, if not centuries, without having some thought about where we stand today, but I’m not going to press you on that. I’m going to take you to a case which I have read and re-read, Kanter v. Barr, and you know the case well because it’s all already been referred to. And it clearly is a case where you had your day in court. You wrote the sole dissent, the 64 page case, 37 pages were your dissent, so you gave to the court, I assume, a pretty full accounting of your thoughts on the subject. And here’s the way I understand the case. A fellow named Ricky Kanter from Mequon, Wisconsin, invented some pads to put in a shoe to be sold to particularly older Americans under Medicare.
Senator Dick Durbin: (01:08:02)
Sold to particularly older Americans under Medicare, to relieve foot pain. And he designed them and submitted them to Medicare and didn’t get the approval that he was looking for, but instead sold them and represented to many customers that they had been approved by Medicare. And so he was charged with fraud.
Senator Dick Durbin: (01:08:23)
Now, this wasn’t a matter of a casual misapplication of the law. When it was all said and done, Ricky Kanter of Mequon, Wisconsin, ended up spending over a year, a year and a day, in federal prison, paying somewhere near $300,000 in penalties and fines and $27 million in a civil settlement on this issue. So this was not a casual wrongdoing. This man was a swindler, and he was taking the federal government for a ride, as well as other customers, and misleading senior citizens about his product and paid a heavy price for it.
Senator Dick Durbin: (01:09:05)
Then he decided, having left prison, that it’s just fundamentally unfair that the law says that if you’ve been convicted of a felony, you can’t own a firearm. Now I don’t know what his appetite is when it comes to firearms, whether it’s a revolver or a AK-47 with a banana clip, I have no idea. But he went to court and said, “This is unfair. It was just mail fraud, and you’re taking away my Second Amendment rights.”
Senator Dick Durbin: (01:09:32)
So two out of three of your colleagues then, basically said, “Sorry, Ricky, you have forfeited your right to own a firearm because of your conviction of a felony.” You took a different approach, exactly the opposite approach, and went deep into history. I think the earliest citation I see here was 1662, to figure out just what was going on here and whether or not he had to have committed a violent felony to have forfeited this right to own a firearm. Have I stated the facts close to what you remember?
Judge Amy Coney Barrett: (01:10:08)
I don’t remember the amount of the loss, some of those details, but yes, Ricky Kanter was convicted of selling fraudulent shoe inserts, and it was a felony.
Senator Dick Durbin: (01:10:18)
$27 million settlement, along the way. So I’d like to take you into your thinking on this. When the Heller decision was handed down, Justice Scalia expressly said, ” I’m not taking away the authority of government to impose limitations based on felonies,” not violent felonies, felonies, “and mental illness.” He said as much in the Heller decision. And yet this man who was your inspiration, as you’ve told us all, you decided he was wrong, and that it had to be a violent felony. Can you explain why?
Judge Amy Coney Barrett: (01:10:54)
I can. So we’ve talked about precedent. And in my court, the seventh circuit, there is precedent saying that that phrase doesn’t control, as my colleague, Judge Frank Easterbrook has said a number of times, that judicial opinions aren’t statutes and shouldn’t be read as if they were. So Heller, obviously, wasn’t about the scope of the right, its application to felons or those who are mentally ill, et cetera. And so that passage was dicta. It didn’t fully dive down into it.
Judge Amy Coney Barrett: (01:11:28)
But what I did was apply Heller’s methodology, both Justice Scalia’s majority opinion and Justice Stevens’ dissent, used an originalist methodology to answer that question, and I concluded that based on that history, one couldn’t take the right away simply because one was a felon, that there had to be a showing of dangerousness. And I didn’t rule out the possibility that the government might be able to make that showing about Ricky Kanter. But I think we could all agree that we ought to be careful of saying that because someone’s a felon, they lose any of their individual rights.
Senator Dick Durbin: (01:12:04)
I want to get to that point, but I’d like to stick with this for just a moment more. I’m honored to represent the city of Chicago and the state of Illinois. It’s a great city, but it has great problems too. And one of them is gun violence. On the average, we know in America, 100 Americans are killed everyday by gunfire, 40,000 per year. In the city of Chicago, more than 3200 people have been shot just this year. 3200. According to the city’s gun trace report in 2017, the majority of illegally used or possessed firearms recovered in Chicago are traced back to states with less regulation over firearms, such as Indiana and Mississippi.
Senator Dick Durbin: (01:12:49)
The 2017 report found that Indiana alone was the source of 21% of all Chicago’s recovered crime guns. We know how it works. Where you live, you know how it works. There’s a traffic between Chicago, Northern Indiana, and Michigan going on constantly. Gun shows are held in Gary, Indiana, and other places. And when they’re selling these firearms without background checks, unfortunately, these gang bangers and thugs fill up the trunks of their cars with firearms and head into the city of Chicago and kill everyone from infants to older people. It’s a horrific situation. Law enforcement is fighting it, trying to get Indiana to at least do background checks at these gun shows, with limited success. And we are trying to apply the standards that you disqualify yourself from buying a firearm to felonies and mental illness. And you want to take away part of that protection with your decision in this case. Because if you eliminate felonies and just confine it to violent felonies, you’re opening up more opportunities for people to buy firearms. Are you not?
Judge Amy Coney Barrett: (01:13:57)
Well, Senator, you referred to gang members and thugs buying guns in Indiana and taking them across the border. And certainly, if they had felony convictions for doing the kinds of things that members of gangs and thugs do, nothing in Kanter says that the government can’t deprive them of firearms. And nothing says, in my opinion, that the government can’t deprive Ricky Kanter of having firearms. They simply had to make a showing of dangerousness before they did so. And nothing in the opinion opines at all on the legality of background checks and gun licensing, those are all separate issues.
Senator Dick Durbin: (01:14:35)
But the majority zeroes in and says, what you’ve just said is totally impractical, that we are going to go case by case and decide, well, what kind of felonies and what kind of person? And then they go on to produce evidence. I could read the numbers here, but you know them well because you wrote the dissent, where the likelihood of committing a violent felony after being convicted of a felony is pretty dramatic. And they’re saying to us, don’t force us to make a case by case. We want to make it by category. It’s the only practical way to deal with the thousands if not millions of people who are buying firearms. You are aware of the fact that even those who are so-called not violent felons, “only felons” like Ricky Kanter, have a propensity to commit violent felonies in the future, are you not?
Judge Amy Coney Barrett: (01:15:19)
There was no evidence of that in the case. And we, on courts, for example, the Armed Career Criminal Act that’s a federal statute, have to make judgements categorically all the time about what count as crimes of violence. So I don’t think that’s beyond the ken of courts in any area, to identify which felonies are violent and which felonies are not. But [crosstalk 01:15:43]
Senator Dick Durbin: (01:15:44)
Excuse me, but I want to address that issue. Let’s go to page 21 of the opinion, and what the court said, the majority of the court. They quoted Yancey. Most felons are nonviolent, but someone with felony conviction on his record is more likely than a non felon to engage in illegal and violent gun use. For example, one study, this goes on to say, 210,886 non-violent offenders found that one out of five were rearrested for a violent crime within three years. So the evidence is there. It is there for the court to consider, and you ignored it.
Judge Amy Coney Barrett: (01:16:18)
Senator, I didn’t ignore it. As I recall, that evidence and the studies were unclear. And let’s see. I can’t remember, as I’m sitting here, the details of all the specific statistics, but I did consider it. And I recall saying something in the opinion about the reliability of those studies, because they didn’t say whether someone had been convicted of a non-violent crime, but had later been convicted of a violent crime as well. Felonies cover a broad range of things, including selling pigs without a license in some states, redeeming too many bottle caps in Michigan. So felonies now cover broad swath of conduct, not all of which seems indicative of whether someone’s likely to abuse a firearm.
Senator Dick Durbin: (01:17:05)
Let me take you… I’m not going to go so far back in history, but I’m going to take you back in history for a moment, and note that when that Second Amendment was written, and you did the analysis of it, we were talking about the likelihood that a person could purchase a muzzle loading musket. We are now talking about virtual military weapons that can kill hundreds of innocent people. It is a much different circumstance. Maybe an originalist pins all their thinking to that musket, but I’ve got to bring it to the 21st century. And the 21st century has people being killed in the streets of Chicago because of the proliferation of deadly firearms.
Senator Dick Durbin: (01:17:47)
But let me bring it closer to home and tie up the George Floyd question with where I’m headed. There’s also a question as whether the commission of a felony disqualifies you from voting in America. And the history on that is pretty clear. In an article, the American Journal of Sociology found that many felony voting bans were passed in the late 1860s and 1870s, when implementation the 15th Amendment and its extension of voting rights to African-Americans were ardently contested. It still goes on today with voter suppression. But we know that in reconstruction, in the Jim Crow era, in black code era, that was used, the felony conviction was used to disqualify African-Americans from voting in the South and in many other places. The sentencing project today has found that more than six million Americans can’t vote because of a felony conviction, and one out of every 13 black Americans have lost their voting rights.
Senator Dick Durbin: (01:18:47)
The reason I raised that is that in your dissent, you said disqualifying a person from voting because of a simple… Simple, because of a felony is okay, but when it comes to the possession of firearms, wait a minute, we’re talking about the individual right of a Second Amendment. What we’re talking about in voting is a civic right, a community right, however you define it. I don’t get it. So you’re saying that a felony should not disqualify Ricky from buying an AK-47, but using a felony conviction someone’s past to deny them the right to vote is all right?
Judge Amy Coney Barrett: (01:19:23)
Senator, what I said was that the Constitution contemplates that states have the freedom to deprive felons of the right to vote. It’s expressed in the Constitutional text. But I expressed no view on whether that was a good idea, whether states should do that. And I didn’t explore in that opinion, because it was completely irrelevant to it, what limits, if any, there might be on a state’s ability to curtail felon voting rights.
Senator Dick Durbin: (01:19:51)
But did you not distinguish the Second Amendment right from the right to vote, calling one an individual right, under the Constitution, and the other a civic right?
Judge Amy Coney Barrett: (01:20:01)
That’s consistent with the language and the historical context, the way the briefs described it. And it was part of the dispute in Heller, of whether the Second Amendment was an individual right or a civic one that was possessed collectively for the sake of the common good. And everybody was treating voting as one of the civic rights.
Senator Dick Durbin: (01:20:20)
Well, I will just tell you that the conclusion of this is hard to swallow. The notion that Mr. Kanter, after all that he did, should not be even slowed down when he’s on his way to buy a firearm. My goodness, it’s just a felony. It’s not a violent felony that he’d committed. And then to turn around on the other hand and say, well, but when it comes to taking away a person’s right to vote, that’s the civic duty. It’s something that we could countenance. That really goes back to the original George Floyd question. That was thinking in the 19th century that resulted in voter suppression and taking away the right to vote from millions of African-Americans across this country, and it still continues to this day. I just don’t see it. I think the right to vote should be given at least as much respect as any Second Amendment right. Do you?
Judge Amy Coney Barrett: (01:21:12)
Senator, the Supreme Court has repeatedly said that voting is a fundamental right, and I fear that you might be taking my statement in Kanter out of context. What I said in that opinion was distinguishing between… It was a descriptive statement of the state of the court’s case law, comparing it to stripping felons of Second Amendment rights. I expressed no view about what the Constitutional limits of that might be or whether the law should change with respect to felling voting rights. And obviously, that’s a contested issue in some states that are considering it right now. And I have no view on that, and it wasn’t the subject of Kanter.
Senator Dick Durbin: (01:21:51)
It may not have been. It wasn’t the subject of the case, that’s for sure, but in your writings, you’re raised this. It was part of your dissent, discussing the right to vote and felony conviction eliminating it. I’m afraid it’s inescapable. You’ve got to be prepared to answer this kind of question. I read it and thought, I can’t imagine that she’s saying this, but I’m afraid I was left with a suggestion you might.
Senator Dick Durbin: (01:22:15)
Which brings me to the conclusion here. We hear over and over from the other side of the aisle, we don’t want any activist judges. We want judges who are going to go back to the original document, literally take it word for word, put it in historical context, and don’t get in the way of making laws. We make the laws. You’re a judge, you stay away from them. And yet when we look at this case, the notion of what disqualifies you from buying a firearm was being rewritten by the dissenting judge and saying, when we say felony, we just mean violent felony. Well, the word violent isn’t in there, but you found it or at least found reference to it.
Senator Dick Durbin: (01:22:48)
It’s not the only time this has happened. In Citizens United and its progeny, Republican-appointed justices struck down bipartisan campaign finance reform to unleash a flood of dark money into our political system. Part of that flood is paying for the ad campaign, promoting your nomination for the Supreme Court. I know you’ve said you’ve gone radio silent in following the media. I don’t blame you. I do the same thing politically, but I can just tell you, I’ve seen them. They are beautiful, expensive ads, boosting your nomination for the Supreme Court, from organizations we’ve never heard of, spending millions of dollars to make sure you get on the Supreme Court. Citizens United opened the door for that. And in Shelby County, conservative justice has gutted the voting rights act to unleash a wave of voter suppression across the country.
Senator Dick Durbin: (01:23:36)
Going back to the George Floyd moment, unfortunately, a lot of is for racial purposes. And this is an example, two or three examples, that I’ve given here, of activist judges rewriting the law, abolishing the law. People have to get real.
Senator Dick Durbin: (01:23:51)
As I said to you on our phone conversation, I don’t think you put the facts here and the law here, and nine justices come to the same conclusion. Cases are five-four, six-three, seven- two, unanimous. People see things differently based on their backgrounds, their values, their experience. And I think it’s simplistic to think this is a robotic performance. Once we put a judge on the bench, they just go back, read the Constitution and rule. It’s not that simple. And I think you’ve acknowledged that by saying even originalists disagree with one another. Is that true?
Judge Amy Coney Barrett: (01:24:21)
Yes. Law is hard, and it’s complicated, and people who approach it from different jurisprudential perspectives will sometimes reach different results. I think that’s hard to deny because as you say, every vote from the Supreme Court isn’t unanimous, and sometimes it is, but cases don’t get to the Supreme Court unless the circuits disagree among themselves. So it’s hard. But to the extent, Senator Durbin, that you’re suggesting that I have some sort of agenda on felon voting rights or guns or campaign finance or anything else, I can assure you and the whole committee that I do not.
Senator Dick Durbin: (01:24:56)
I didn’t say that. I wouldn’t say that. But I will say that you come, if you’re successful in this pursuit, you come to the Supreme Court with life experiences. You come to the Supreme Court, having read a lot, I’m sure, and drawn some conclusions in your own mind about certain things and certain issues. Everyone on the court has that same background. They bring something to it that is just not generic. It’s individual. And that’s the point I’m making. There’s an individualism to this. The class of originalists on the Supreme Court are not all going to vote the same on every case. And I think merely saying originalism does not absolve you or us from observing the obvious. There are going to be differences. Would you like to say something? I don’t want to cut you off?
Judge Amy Coney Barrett: (01:25:42)
No, that’s okay.
Senator Dick Durbin: (01:25:42)
Okay. Thank you very much.
Judge Amy Coney Barrett: (01:25:44)
Thank you, Senator.
Mr. Chairman: (01:25:45)
Senator Durbin. We’ll go to Senator Lee. And after that, we’ll take a 30 minute lunch break and start back with Senator Whitehouse. Senator Lee.
Senator Lee: (01:25:53)
Thank you, Mr. Chairman. I have two letters for the record that I’d like to have admitted. They’re authored by former law clerks of Judge Barrett’s.
Mr. Chairman: (01:26:00)
Senator Lee: (01:26:01)
I’d encourage all my colleagues to read them. They’re outstanding and provide a great insight into Judge Barrett’s immense qualifications.
Senator Lee: (01:26:12)
Judge Barrett, moments ago we went through rather interesting set of exchanges. One of my colleagues, I hope I misunderstood him, seems to have suggested that it’s a political talking point for you to decline to indicate how you would rule on a particular case or a particular type of case. To the extent that that’s what any colleague has suggested, I’d remind that colleague that’s just wildly incorrect, wildly incorrect with canons of judicial ethics, with federal law, with the statement laid out by Justice Ruth Bader Ginsburg in her own confirmation proceedings, before this very body in this very room, nearly 30 years ago.
Senator Lee: (01:27:06)
It is imperative that you uphold those standards, and I applaud you for doing so. And I think on no planet is it appropriate for anybody to suggest that that’s a political talking point for you to say, “I’m not going to indicate how I’m going to rule in a particular case.” Justice Ginsburg did in fact say it well, and some of this has been quoted today. I’m going to quote it again, just for good measure. She said, “Judges in our system are bound to decide concrete cases, not abstract issues. A judge sworn to decide impartially can offer no forecast, no hints, for that would show not only disregard for the specifics of a particular case, it would display disdain for the entire judicial process. Similarly, because you’re considering my capacity for independent judging, my personal views on how I would vote on a publicly debated issue, where I in your shoes, where I a legislator, are not what you will be closely examining.” That’s what she said. She said it well. It was true in 1993, and it remains true today.
Senator Lee: (01:28:14)
I want to turn next to a line of questioning that you just finished, that you just completed. I too have read the Kanter case, and I am thrilled that we’ve got a jurist who is willing, when looking at somebody whose constitutional rights are about to be taken away, thrilled to have a jurist who’s willing to consider a pre-deprivation review for that individual. Is it unusual, Judge Barrett, to consider someone’s constitutional rights on an individualized basis, before having a specifically enumerated constitutionally protected right removed?
Judge Amy Coney Barrett: (01:28:56)
That would be very, very unusual.
Senator Lee: (01:29:00)
It’d be very, very unusual, and it would be unwise. Would it not?
Judge Amy Coney Barrett: (01:29:04)
Well, I think what I could say to that, just to be careful about how much law I’m analyzing, is that the 14th Amendment due process clause certainly guarantees to each individual due process before liberty is taken away.
Senator Lee: (01:29:17)
I also appreciated the thorough analysis that you undertook, making clear that our rights in this area don’t just date back a few decades. They don’t just date back to the ’60s. They don’t date just back to the 1780s or the 1760s. They date back at least to the 1660s. They go way, way back. There is a lot of history that went into what became the Second Amendment. There were conflicts involved, not just partisan conflicts, but conflicts between the king and subjects. And not just between the king and subjects in the abstract, but very often it was between Protestants and Catholics. Sometimes it was Catholics who weren’t trusted with guns. Sometimes it was Protestants who weren’t trusted with guns. But there was a lot of violence that went into that. And that led to our adoption of that amendment.
Senator Lee: (01:30:07)
I appreciated your historical analysis of this, your willingness to be thorough, to make sure that when someone’s constitutionally protected rights are taken into account, you’re going to do your homework. You’re going to do your homework, even if it’s hard. You’re going to do it, even if you’ve got colleagues who aren’t willing to go there. That’s what judicial leadership is. Judicial leadership involves willingness to stand alone. Judge Barrett, one of the things that came out to me, as I read your opinion in the Kanter case, is that your commitment to textualism and originalism are in fact real. They’re not feigned. This is the kind of thing you can’t fake. This isn’t something you make up at the last minute. And yes, I agree with Senator Durbin. Being a textualist and originalist doesn’t guarantee a particular result, a particular outcome in any particular case, but it does indicate a style, a preference. Tell me why textualism and originalism are important to you.
Judge Amy Coney Barrett: (01:31:07)
Because I think that both statutes and the Constitution are law. They derive their democratic legitimacy from the fact that they have been enacted, in the case of statutes, by the people’s representatives, or in the case of the Constitution, through the Constitution making process. And I, as a judge, have an obligation to respect and enforce only that law that the people themselves have embraced. As I was saying earlier, it’s not the law of Amy, it’s the law of the American people. And I think originalism and textualism, to me, boil down to that, to a commitment to the rule of law, to not disturbing or changing or updating or adjusting and in line with my own policy preferences what that law required.
Senator Lee: (01:31:56)
And is it the subjective motivation, the subjective intent of an individual lawmaker or drafter of a constitutional provision that we’re looking at? Or is it original public meaning? And if so, what’s the difference between those two?
Judge Amy Coney Barrett: (01:32:08)
It’s original public meaning, not the subjective intent of any particular drafter. So one thing I have told my students in constitutional law is that the question is not what would James Madison do? We’re not controlled by how James Madison perceived any particular problem. That’s because the law is what the people understand it to be, not what goes on in any individual legislator’s mind. I respect you greatly, Senator Lee, but what you think in your mind, rather than what passes through both Houses and is signed by the President, that’s what’s the law, not any private intentions you have.
Senator Lee: (01:32:47)
So regardless of what… Let’s say, I pass bill XYZ, and I’m the sponsor of it, and I take it down to the floor, and I say, here’s bill XYZ. And here’s what I think about it. Here’s what I intend to do with it. And I put that statement into the legislative record. What, if any, impact should that statement have on the meaning of law XYZ, once it becomes law?
Judge Amy Coney Barrett: (01:33:16)
Nothing. You’ve got to get it into the law itself, if you want it to be law. Legislative history is not what goes to the process of bicameralism and presentment.
Senator Lee: (01:33:23)
Regardless of how passionately and persuasively I make that point, in whatever glorious speech I give in support of bill XYZ, it doesn’t make a darn bit of difference, does it?
Judge Amy Coney Barrett: (01:33:35)
It doesn’t. I’m sure the speech would be glorious, but I assume the point you make probably would be made by the advocates in the case too. And so in that respect, you are functioning as an advocate when you make the glorious statement, but not speaking with the voice of the lawmaker because no individual does. It’s the full body that speaks.
Senator Lee: (01:33:56)
I want to speak next about the Affordable Care Act. We’ve seen posters going up over and over and over again. We’ve seen them yesterday. We’ve seen them today. We’ve seen a lot of compelling stories about people whose lives have been marked by difficult things that they’ve endured. They’ve involved touching and heartwarming stories. I continue to doubt the relevance of things like that here, especially insofar as they’re being used to suggest that your confirmation to the Supreme Court of the United States has anything to do with their healthcare. Tell me why you think that any individual American’s healthcare status is or is not tied to your confirmation to the Supreme Court of the United States?
Judge Amy Coney Barrett: (01:34:53)
It is not tied to my nomination to the Supreme Court of the United States. I have said repeatedly under oath that I had no conversations with anyone in the White House about that case. And I’m not sure, to the extent there’s a suggestion that I have an agenda that I want to strike down people’s protection for preexisting conditions, that’s just not true. I’ve never taken that position. And as I’ve also said repeatedly, any policy preferences that I have don’t matter anyway. They’re irrelevant. So making that law, coming out with the contours of the ACA, that’s your job.
Senator Lee: (01:35:31)
It is our job. It is the job of policymaking branches of government. It’s the job of whatever combination of state and federal lawmakers and other policy makers have. A judge is not a policymaker. When Congress passes a law, Congress is in charge of making sure that that law works, insofar as that doesn’t work or that law ends up being stricken down, it’s our job to replace it with something that does work, whether constitutionally or otherwise in all respects. That’s our job, not yours.
Senator Lee: (01:36:10)
You made some comments a few years ago, comments with which I wholeheartedly agree, raising a criticism with Chief Justice Roberts and his majority decision in NFIB versus Sebelius decision. And don’t worry, I’m not going to ask you to weigh in on this. You made those comments at the time, and they’re not relevant to me now, but I set this up for reasons I’ll explain in a moment.
Senator Lee: (01:36:38)
He rewrote the Affordable Care Act, not just once but twice, in substantive ways, in order to save that law from an otherwise inevitable finding of unconstitutionality. Because that law, as written by this Congress, was in fact unconstitutional in two material respects at issue in NFIB versus Sebelius. Blatantly unconstitutional. He effectively acknowledged that the law as written couldn’t pass constitutional muster. And so he rewrote it, not just once but twice, in order to save it.
Senator Lee: (01:37:12)
That’s water under the bridge. That happened. It’s inexcusable that he did that. He misused the judicial authority. That case has absolutely nothing to do with California versus Texas. It has absolutely nothing to do with the question of severability in that case. Would it be fair to say that my very strong opinions that I’ve just expressed do not indicate how I would feel, how I would lean, where I a jurist in California versus Texas?
Judge Amy Coney Barrett: (01:37:47)
I think you’re correct, Senator Lee, that the question, the legal issue is entirely different in California versus Texas. Severability is its own independent doctrine and has nothing to do with the statutory interpretation questions presented in Sebelius.
Senator Lee: (01:38:04)
In many circumstances in this country, we see emotionally charged issues that boil and boil for a long time, and they can’t always be resolved. Not everybody’s going to agree on everything. Not everybody is going to agree on certain hot button social issues that result in some cases, from just basic differences in how people view life and how people view their place in the universe.
Senator Lee: (01:38:32)
One of those areas where it manifests itself is in the area of abortion. People view life and when it begins differently. Some of that’s informed by religious beliefs. Some of it’s informed just by people’s common sense approach to what they think the law ought to say and what it ought not to say. Disputes regarding when life begins and disputes regarding abortion didn’t begin with Roe vs. Wade. What did change with Roe vs. Wade, however, was the federalization and the grasping of the issue and the taking it beyond the realm of political debate within the federal judiciary, such that elected lawmakers were no longer in a position to be the primary drivers of policy.
Senator Lee: (01:39:29)
As a result, over the last few decades, you’ve had all kinds of questions that have been put into uncertainty. You’ve got uncertainty by people at the state level who want to make their own decisions about certain things around abortion. They know they can’t prohibit it entirely. They know that there’s this undue burden standard that has to be addressed. Nobody’s completely sure in advance what that means. And so they work around it. There are discussions that arise, regarding health and safety qualifications for abortion clinics, how close an abortion clinic needs to be to an accredited hospital, how it needs to be staffed and what the sanitation protocols are.
Senator Lee: (01:40:13)
Then you’ve got, more recently, some states passing laws saying, look, there’s abundant medical science showing that an unborn human can feel and respond to pain as early as, I don’t know, 10 or 12 gestational weeks, but certainly by 20 weeks. And so by 20 weeks, we’re going to adopt a different set of legal procedures for an abortion as a result of that. Because if this is a human that everybody agrees can feel and respond to pain, we’re going to handle that differently. All of those things, the legitimacy of those laws, are thrown into the federal courts yet again, all because those were made federal issues.
Senator Lee: (01:40:59)
Now I want to be very clear. You’d have the impression from watching debates in circumstances like this one and in protests outside the Supreme Court of the United States, you’d have the impression that if Roe vs. Wade didn’t exist, then all of a sudden, abortion would immediately become illegal in every state in America. That assumes a lot of facts not in evidence. In fact, that assumes a lot of things contrary to evidence.
Senator Lee: (01:41:33)
It is simply not the case that the fate of healthcare in America turns on whether or not someone is confirmed to the Supreme Court of the United States, nor is it a fact to suggest that the availability of an abortion or lack thereof is contingent upon anyone’s confirmation to the Supreme Court of the United States. The fact that we have this debate and the fact that it’s become as protracted as-
Senator Lee: (01:42:03)
We have this debate, and the fact that it’s become as protracted, as personal, as ugly it has, could I suspect be traced to the fact that we’ve tried to take a debatable matter beyond debate. And we’ve tried to take it outside the political branches of government where people can elect their individual representatives and have laws respecting and reflecting the views of their respective communities. We’re a country of what, 330 million Americans? It’s really, really difficult to have those 330 million Americans reflected in nine members of a Supreme Court. It’s still really hard to have them reflected in a hundred senators and 435 representatives. That’s doable, especially when those people are elected. They stand for election every couple of years in the case of the House, every six years in the case of the Senate. It doesn’t happen that way in the Supreme Court of the United States.
Senator Lee: (01:43:04)
So to my colleagues on the other side of the aisle who are fear-mongering on this, causing people to worry and lose sleep over this, fundraising over this, fundraising over threats that people are going to lose their healthcare fundraising over threats that people are going to be dying in the streets because of the lack of availability of this or that medical procedure. I’d ask, have we created a monster? Have we ourselves, through our own inaction, through our own voluntary cessation of authority to a non-legislative, nonpolitical brand, have we created the very set of untenable social circumstances that are causing people to protest outside of a nonpolitical entity? I think we have to ask ourselves that question from time to time.
Senator Lee: (01:43:57)
Life is in fact valuable. It’s not a religious statement to make that observation. In fact, it’s the foundation of basically all of our laws, not just in this country, not just in countries with Christian origins, but in basically every country that has ever existed anywhere in the world. The purpose of government is to protect life. That’s what it’s about. If we can’t agree on the fact that it’s reasonable, but people ought to be able to have some say, at least at some limit, at least at some point beyond the moment when an unborn human can feel and respond to pain, something’s wrong with us. And if we’re going to leave those things perpetually in the hands of the unelected, it might be really convenient for political fundraising within Congress, but it’s not good for the United States of America. It’s not good for Constitutionally limited government. It’s not good for our individual liberties.
Senator Lee: (01:45:05)
Judge Barrett, Alexander Hamilton was prescient in a number of areas. He had some crazy ideas. He did some crazy things. He was also freaking brilliant. I think he foresaw certain aspects of our lives when he described the differences between the branches of government in Federalist 78. And in Federalist 78, he said that the legislative branch, Congress, being a political branch, a branch whose job it is to make policy, to make law, was possess with will, and that what’s possessed of a judicial branch is not will, but judgment. He then went on to explain that it’s really important to maintain that clear distinction between will and judgment, lest you have the judicial branch, consisting of people who are not elected by the people, not accountable to the people at the regular intervals, and who serve basically for the rest of their lives, so long as they’re on good behavior. You can’t have them exercising will because it’s not their job. What do you think he meant? What’s the difference between will and judgment,
Amy Barrett : (01:46:23)
I think will is the imposition of policy preferences as happens in the making of law. Judgment is evaluating that law for its consistency with the Constitution, for example. Or to give another example, to interpret what that law means. But it most certainly is not the imposition of policy preferences. A judge who approaches a case as an opportunity for an exercise of will, has acted, has betrayed her judicial duty.
Senator Lee: (01:47:00)
How does she know when she’s reached that point?
Amy Barrett : (01:47:05)
So, I think it requires disciplined judicial decision-making. So you approach the text, you treat it as a text, you treat it as law. I’ve described originalism and textualism so I won’t belabor that point, but I will say that one practice that I have, one check that I put on myself to make sure that I’m not biased, is that when I write an opinion, I try to read it from the perspective of the losing party so that any sympathy that I might feel for the particular result that I reach, I try to make the sympathy run the other way to see if it will still hold and also to see like… I would be disappointed in this outcome if it was my child who’s sentence or criminal conviction or civil loss, whatever it is is on the line, but would I still think it was a well-reasoned opinion? And that’s the test that I use for myself. I think discipline is required, but I take it very, very seriously
Senator Lee: (01:48:12)
As we’ve had this conversation today, one of the arguments that’s been made by some of my colleagues is referred to activism, and has accused, if I understood the argument correctly, some textualist, originalist jurists as having engaged in activism. I want to be clear, I’m one who doesn’t believe that there is any thing worse about an activist judge than a passivist judge. I think it’s every bit as bad to be a passivist. That is, for example, to let stand an invalid, unConstitutional law as if it were valid and Constitutional. It’s every bit as bad to do that as it is to invalidate as unConstitutional something that is in fact not unConstitutional. Do you agree with me that both of those are equally instances of bad judging?
Amy Barrett : (01:49:25)
They are both instances of, as you’ve posed them, of not following the law, not following the Constitution or not correctly interpreting a statute.
Senator Lee: (01:49:36)
By the same token, a judge who fails to grant a meritorious dispositive motion and a judge who grants a non-maritorious dispositive motion. They’ve both probably done an equally bad thing. Is that right?
Amy Barrett : (01:49:52)
Senator Lee: (01:49:55)
Does the Constitution say anything about the size of the Supreme Court?
Amy Barrett : (01:49:59)
The Constitution does not. That is a question left open to Congress. It’s my understanding that it’s been nine for about 150 years, but that’s as a matter of statute, not Constitutional requirement.
Senator Lee: (01:50:11)
So, it’s with statutory. It’s a statutory decision, one that’s stood for more than a century and a half. It’s a decision nonetheless that has some bearing, could have some bearing, on Constitutional issues. Correct?
Amy Barrett : (01:50:28)
In so far as there would be more decision- makers on the court?
Senator Lee: (01:50:32)
If we abandoned the longstanding historical practice and tradition of having nine justices, could that have an impact on the way the three branches of government interact with each other?
Amy Barrett : (01:50:47)
Possibly. But it’s difficult for me to imagine what specific Constitutional question you’re asking. And of course, if there were one, I couldn’t opine on it.
Senator Lee: (01:50:55)
Of course. There are strong reasons, I believe, why over the last more than a century and a half, we’ve left that number at nine. As you point out there’s nothing in the Constitution that requires it. We could come up with any number we wanted. There does have to be a Supreme Court and such inferior courts as we choose to create, but it doesn’t specify the number of seats that can be on there. There are nonetheless good prudential reasons, reasons having to do with respect for the separation of powers between the three branches of government. Reasons that have, over the last 150 plus years, left us to leave that number at nine.
Senator Lee: (01:51:42)
The last time, as far as I can tell, there was any serious effort to move the number above nine, it was in the fall of 1936 when president Franklin D. Roosevelt got tired of the so-called four horsemen of the apocalypse, a few members of the Supreme Court who were consistently voting against his agenda, and sometimes joined by one or more other members of the Supreme Court. He got particularly tired of this, and so he proposed packing the court. And let me explain what I mean by packing the court here. What I mean when I refer to this is increasing the number of seats on the Supreme Court and doing so by statute with the intent of altering the composition of the court for short-term political gain. That’s what FDR wanted to do.
Senator Lee: (01:52:32)
Not withstanding the fact that he had an overwhelming super majority in both houses of Congress, fortunately, FDR’s idea that he pushed in the fall of 1936 didn’t make it anywhere. It didn’t gain progress. It met enough opposition, even with both houses of Congress being overwhelmingly controlled by his political party, that it stalled, quite mercifully, and it’s remained ever since then at nine justices. I think it would have been a colossal mistake. Joe Biden, himself as a US Senator, as a member of this body, in a proceeding of this committee in 1983 gave a rousing speech that I recommend to all talking about that very thing. Acknowledging that the Constitution doesn’t require it, but our respect for the separation of powers really ought to lead to us sticking to the number nine. Don’t pack the court.
Senator Lee: (01:53:27)
In recent days, I’ve seen some in the media and some in this body try to redefine what it means to pack the court. Some have suggested, well, court packing takes various forms, and it can mean confirming a lot of people all at once. Some have defined it so as to suggest that it consists of doing that which the Trump administration and the Republican Senate have been doing over the last three and a half years, which is filling vacancies as they have arisen and doing so with textualist, originalist judges. This may not be something that some like, but this is not court packing. Court packing is itself manipulative. It’s something that has great danger to do immense political and Constitutional harm to our system of government. In part, because it would set up a one-way ratchet. Once you create a position and confirm someone to that position, absent death, retirement, or impeachment and removal, that position remains in place.
Senator Lee: (01:54:28)
So if, for example, a future Congress and White House were to decide to get together and to pack the court and increase the number, say to 11. And let’s say it’s Democrats who do that. And we’ve got Joe Biden now as a Presidential candidate who’s refusing to say whether he would do it. There’s a reason he’s not saying whether he would do it. There’s only one reason why you refuse to answer that question, and it’s if you’re wanting to be able to do it, but you don’t want to take the heat for the fact that you’re thinking about doing it right now.
Senator Lee: (01:55:08)
So if they do that, where does it lead? Well, it inevitably leads to the point where the next time Republicans have control of both houses of Congress and the White House, they’d increase it as well. You’d end up increasing it incrementally. Before long, it looks like the Senate in Star Wars where you’ve got hundreds of people on there. I don’t know what the total number would be, but you increase it at all, you change the number at all, you do so for partisan political purposes at all, you de-legitimize the court. And you can’t de-legitimize the court without fundamentally threatening and eroding and impairing some of our most valued liberties. You can’t do that without inevitably threatening things like religious freedom, things like free speech, things that are themselves often unpopular, but are protected by the Constitution, precisely because they are unpopular.
Senator Lee: (01:56:08)
And yes, in that respect, the Constitution is sometimes counter democratic. Sometimes it can be described as fundamentally undemocratic. In fact, the whole reason to have a Constitution is to protect us from the impulse of a majority that might be bent on harming the few in the name of the many. That’s why the law is so important. That’s why the position for which you’re being considered is so essential. That’s why we’ve got to do our job to make sure that the only people who get the job for which you’ve been nominated fit the bill.
Senator Lee: (01:56:47)
You Judge Barrett are someone in whom I have immense confidence, immense trust, and I look forward to voting, to confirming you for that very position.
Mr. Graham : (01:57:00)
Thanks Senator Lee. We’ll take, let’s come back at 12:45. We’ll start with Senator Whitehouse. We have 15 Senators left. Everybody takes the 30 minutes, that’s seven and a half hours. We’ll take a break for dinner tonight, sometime later on, and a short break? Are you doing okay?
Amy Barrett : (01:57:23)
Mr. Graham : (01:57:23)
Three hours about right? So we’ll come back at 12:45, and right now we’re on schedule to be here until nine o’clock, but we’ll do whatever the committee wants. We’re in recess to 12:45.
Judy Woodruff : (01:57:35)
That is Senator Lindsey Graham, the Chair of the Senate Judiciary Committee, saying they will take a short lunch break for about 40 minutes and then come back when we will hear questions from 15 more Senators who are members of the Judiciary Committee, part of these confirmation hearings of Judge Amy Coney Barrett to the Supreme Court. We have our regular News Hour contingent with us, Congressional Correspondent Lisa Desjardins, our National Correspondent, John Yang, who covers Supreme Court issues. Also our White House correspondent, Yamiche Alcindor. And to help analyze and give context to the hearings, I’m joined by News Hour regular Marcia Coyle of the National Law Journal, Victoria Nourse of Georgetown University. Earlier, she served as Chief Counsel to then Vice-President Joe Biden and his counsel to the Senate Judiciary Committee when he was its chairman. And Saikrishna Prakash, he’s a Constitutional law scholar at the University of Virginia. He’s also a former clerk to Justice to Clarence Thomas. He has been contacted, we should say, by the Judiciary Committee to potentially testify on Thursday as a witness in favor of Judge Barrett’s confirmation.
Judy Woodruff : (01:58:48)
So to all of you, we’ve heard a lot this morning from the Senators, a little less from Judge Barrett about her views, but I want to come to you first, Marcia Coyle. We did hear a little from her that we know that her family owns a gun. We know that she and her family teared up when they watched the video of the death of George Floyd this summer. But when it comes to answering questions about how she would rule, what she would decide, how does that compare to what we’ve seen from other justices nominated in recent years?
Marcia Coyle: (01:59:29)
Well, Judy, I think it’s pretty clear that all nominees have learned sort of the magic words to say when they are asked about specific rulings by the Supreme Court, how they may rule on other issues, they’re just not going to make any kind of commitment or any statement that might reveal how they think about those particular issues. And so we didn’t really learn a whole lot from Judge Barrett about issues that are common discussions and debates at dinner tables in America. I think that the hearing this morning really stayed focused on each side’s goals here. You saw that the Democrats who were singularly focused yesterday on the Affordable Care Act followed up on that. I’d say the Affordable Care Act, abortion, and guns were the topics they were most interested in, and that was because they have a little more meat to deal with. They have some of Judge Barrett’s opinions on the Seventh Circuit, as well as writing and speeches. So they did try to learn more about her through those, but I think they scored limited points.
Judy Woodruff : (02:00:51)
Democrats, I was going to say, Democrats certainly did come back at those questions time and again. John Yang, on several occasions, we heard Judge Barrett say, and it came out at the very beginning when Lindsey Graham, the Chair, asked her to compare herself to the late Justice Antonin Scalia, because she has called him her mentor. He asked her, would you be another Judge Scalia? And she made a point of saying she’d be different.
John Yang: (02:01:27)
She said she’d be Justice Barrett. I think it’s also, to sort of add on to what Marcia was saying, we learned, or she spoke more about her judicial philosophy. But I think that was clear from her previous writings that she’s an originalist, she goes back to what the words meant when the Constitution was ratified or when the amendments were ratified. And she is a textualist, she goes after the words on the paper. She doesn’t care, not doesn’t care, but she does not give precedence to legislative intent, what the lawmakers said when they pass laws.
John Yang: (02:02:03)
But I don’t know that that is necessarily a predictor of how she would rule, as was pointed out before, yesterday. The current, one of the leading originalists and textualists on the court now, is Neil Gorsuch. And he ruled earlier this year that Title Seven of the Civil Rights Act of 1964 bans discrimination against gay men, lesbian women, and transgender Americans. That was hotly contested by two other originalists, contextualist, Justices Alito and Thomas, who said in their dissent that this was not a textual exercise, that all Gorsuch had done was rewrite Title Seven to meet the current standards. So it’s really not a predictor at all. As she says, originalists and textualists can disagree, and they do.
Judy Woodruff : (02:03:00)
And Victoria Nourse, we did hear her make that point. And we also heard her in several question and answer exchanges, say that on the ACA, when it comes to the Affordable Care Act, also known as Obamacare, that the case coming before the court in November is based on a different question from the case that was decided several years ago, in which the Chief Justice ruled one way in a way that she was critical of. She went out of her way, it seemed to me, to say, “I don’t want you to think that I’ve telegraphed anything by what I’ve said before about the Chief.”
Victoria Nourse: (02:03:49)
Well, I think she did go out of her way because it is somewhat unusual for a Justice who had been so pointed about criticizing a Chief in their writings. But I think what you really need to know about this methodology here, which is behind this is it can predict something. And it predicted that cases such as King v. Burwell, which was the first one up there on text, or this current case would never have gone up there when I was a law student, because textualism didn’t exist. Textualism allows a judge to pick and choose texts. They don’t think that, but that’s what happens. And these cases would have been considered, “Well, I defer to the legislature.” So there is something more I think you can predict. Yes, they come out with different results sometimes, but that’s because the method isn’t determinative in any way.
Victoria Nourse: (02:04:38)
So they believe that it restrains. But in fact, the data shows that it doesn’t constrain. And you know, I think one of the ways you can see this is if you look at the gun decision that Senator Durbin was talking about, because she’s to the right of Scalia on that. He said that gun felon laws in Heller were fine. Now she said that was dicta. But in that case, she basically claimed, “Oh, I’m not going to decide anything about the consequences of this. And I’m going to rewrite the statute.” She rewrote the statute, as Durbin said, to add violent felony. Wisconsin wrote a statute that said felony, period. Why doesn’t it say all felonies? Well, she says, “No, it doesn’t because of the Constitution.” So I think the method is something of a smoke screen here. John is actually right, it doesn’t lead to results. But that’s the problem [inaudible 02:05:33] claim that it restrains. And it doesn’t.
Judy Woodruff : (02:05:36)
Well, Saikrishna Prakash, pick up on that because people are going to be, certainly are acutely interested, listening for any hint of any kind on how she’d rule on guns, on the ACA, on abortion, on same-sex marriage. What did you hear?
Saikrishna Prakash : (02:05:56)
I heard a judge who was committed to a methodology, and unlike Professor Nourse, I do believe that the methodology constraints. I think there were two possible textual readings of the Anti-Discrimination Act, and Gorsuch and Thomas and Alito ably demonstrated those two possible readings. They disagree with themselves, but that’s not uncommon. The textualist slash originalist approach doesn’t yield one answer in many cases. And that’s not a fault of the theory, it’s the fault of imprecision in language. And I say this as someone who is an originalist, but who’s not a textualist. I kind of have Professor Nourse’s approach to statutory interpretation. I think it’s appropriate to look at legislative history.
Saikrishna Prakash : (02:06:40)
And if you listen very carefully today, Judge Barrett didn’t deny that legislative history can be relevant in certain cases. She just adopted the approach that where the text is clear, you shouldn’t look to it. And then the rub is, well, when is it clear and when is it not? And I suspect that some people are more apt to say it’s unclear than she would be. But I don’t think that it’s just a smoke screen for ideology. I do think that texts constrains. And I think the alternative approach, I think, is to think that text doesn’t and shouldn’t constrain judges and they should do what they want. And as you can tell, Judge Barrett did not believe that.
Judy Woodruff : (02:07:16)
Lisa Desjardins, you’ve been following these Senators, trying to understand what their goals are throughout these hearings. Are you getting the sense that they’re going in the direction they had planned to go?
Lisa Desjardins : (02:07:34)
I think that’s right so far. I’ll say that I was on a call with two Democratic Senators on the committee this morning, Senators Durbin and Blumenthal. They held this for reporters to talk about their strategy today going into questions. And the strategy that Democrats said they were going to pursue, at least what Senator Blumenthal said, is they wanted to show that Amy Coney Barrett’s ideas are radical and extreme. That while she is clearly very smart, capable, that she has high intellect, in their view that her reading of the law is extreme. And they said they wanted to show this through a number of examples. We heard those subject areas come up, guns, LGBTQ rights potentially, abortion in particular. And of course the Affordable Care Act.
Lisa Desjardins : (02:08:20)
But Judy, I don’t think they’ve really made that case so far. They haven’t really used words like extreme or radical, which are things that Senator Blumenthal was using. He’s still a couple hours ahead. I think about three hours ahead in the hearing. But I think if they’re trying to make the case that Judge Barrett is way out of step with judicial norms, they haven’t gone that far. They seem to have instead done more to say that she could affect people’s lives. That’s a political message that also has to do with the election. Now, on the other hand, Republicans have their own strategy. As Democrats want to show Judge Barrett as being extreme, Republicans are trying to make the case that it’s Democrats who are extreme, that they are willing to do anything to push out a nominee who they see as credible. And that also of course has to do with the election and trying to convince voters which side is more reasonable and better for the future of this country.
Judy Woodruff : (02:09:18)
Marcia Coyle, let me come back to you on that. These hearings are being held just a matter of days, less than three weeks, before election day. We know Americans have been going to the polls already for days, millions have already voted. How do you see the election? We’ve never seen a Supreme Court nomination hearing this close to an election in this country. And so how do you see that showing up in this hearing?
Marcia Coyle: (02:09:55)
By the Democratic Senators who are seeking a commitment from Judge Barrett to recuse from any election related disputes that come before her if she is seated in time to rule on those disputes. And she has refused to make a commitment to recuse, she has said that she would apply the guidelines in the statute on recusal. And she did emphasize that within those guidelines is recusal if there is an appearance of bias. So I think that’s as far as she was willing, obviously it’s as far as she was willing to go. I’m sure it wasn’t what the Democrats wanted to hear.
Marcia Coyle: (02:10:43)
Judy, I’d like to go back a bit first to the Affordable Care Act and her comment that the issue before the court in November is not the same issue that was before the court in the 2012 case, the first case to go to the Supreme Court, as well as in King v. Burwell, the second case. And that is correct. It’s not the same issue, but I think the point that the Democrats were trying to make is that the stakes are very much the same. Especially [inaudible 02:11:20] yes, the question is different. But if the Supreme Court were to rule in favor of the Republican led states and the Trump administration that are challenging the act, the entire act could fall. And yes, the coverage for pre-existing conditions, having your child on your insurance until age 26, all of that would fall and certainly much more the Medicaid expansion.
Marcia Coyle: (02:11:45)
And then I also wanted to add on guns that Judge Barrett’s dissent in the gun case that was discussed, it was really out of step with how all of the federal appellate courts that have ruled on the felon possession laws have ruled. But there also has been considerable debate about whether the laws should be as strict as they are when it comes to non-violent felons. But as of today, her dissent really was, I don’t think you would call it radical, but I would say that she pretty much stands alone in her view of the Indiana law, as well as the federal law that prohibits felons from having guns.
Marcia Coyle: (02:12:34)
And in the broader context, Judy, the Second Amendment is still very much an issue in the Supreme Court. And it’s an issue that the court hasn’t really wanted to get back into. If you remember in the end of June, I believe it was, the court turned away 10 petitions involving the Second Amendment. Cases that covered so many of the issues that have been percolating in the lower courts. And the common wisdom on this is that the court, that there really are four justices who would like to take another gun case and four votes are all you need to grant review, but those four justices were never really sure that they had a fifth vote in the end for the view that they wanted to see the court adopt. And so they have been very reluctant to take a case. I don’t know if Judge Barrett would come down on whether she’s willing to get into the Second Amendment as a justice, but that’s another area where her vote could be very important.
Judy Woodruff : (02:13:36)
Victoria Nourse, if you would comment on that. And then I do want to turn us to Roe v. Wade and what we picked up, if anything, on her thinking on abortion.
Victoria Nourse: (02:13:50)
Well, I’ll just start with that. I don’t think we picked up much of anything. I mean, there’s a rehearsed line that the Justices use. I’m not going to give a thumbs up or thumbs down. So we weren’t going to hear anything from her on a topic like that. This is why the ideology or the philosophy is so important and it’s kind of coded. Right? So let me translate a little bit for you. One of the reasons that she’s probably going to find the hearing very odd is that if she and I were to debate, we wouldn’t care really, presumably we would care about method rather than the consequences. Because originalists don’t look at the consequences. They say that they take pride in that. So it doesn’t matter to her how many people will lose their health insurance. She prides herself on that. She thinks that’s what’s constraining her.
Victoria Nourse: (02:14:38)
And so one of the things you have to understand about the method is that she herself has said that it would make great changes if you took it consistently. All right? So she knows and has signaled that originalism, there is no right to abortion in the Constitution. Right? This is the big claim about originalists. This is where originalism started so many years ago. And she has written that originalism would do things that would wreak quote unquote havoc. This is in her own article. “Adherence to originalism arguably requires the dismantling of the administrative state, the invalidation of paper money, the reversal of Brown v. Board of Education, and that West Virginia might be unconstitutional.”
Victoria Nourse: (02:15:25)
Anybody who studies this method knows that it has extreme consequences. Now they were not willing to accept those, and in the articles she disavows them. But that’s not a method if you’re just going to pick it when you like it and then get rid of it when you don’t like it. So that’s the real issue here because all of this is veiled. Now, she won’t answer questions about specific cases. So it’s something of a charade, and no Democrat would either, nominee. So you have to read between the lines.
Judy Woodruff : (02:15:57)
I’m sorry to interrupt, but just to respond. [ Saiprakash 00:34:03], why shouldn’t someone who cares…
Judy Woodruff : (02:16:02)
… Prakash, why shouldn’t someone who cares very much about these cases that Victoria is citing continue to have big questions based on what Victoria just said?
Saikrishna Prakash: (02:16:16)
So on that article that professor Nourse just cited, I don’t think she actually said those things. I think what she said is that some originalists have said the following things and that they could have these consequences. As for what she’ll do on the bench, I think the idea that she expressed in another article is that judges don’t continually review precedents to decide whether they ought to be tossed aside. They are primarily dependent upon the parties to raise cases and ask for them being overturned. And in that context, most cases aren’t before the court. Litigants aren’t asking the courts to overturn a bunch of cases. And in that context, the judges don’t have some duty to independently come up with those ideas on their own. So when you think about her context or her discussion of super precedents, what she’s describing there is a sociological situation where no one’s likely to ask for these cases to be overturned. And therefore she doesn’t need to decide whether some case like Marbury was right in 1789.
Judy Woodruff : (02:17:15)
Victoria, what about that?
Victoria Nourse: (02:17:17)
Well, I mean, I don’t think most Americans don’t think that we want a 1789 constitution in my view. My first article was on the Federalist. I love history too. And I think it is a guide in cases where nothing’s been decided, but there are plenty of people who are about to challenge all sorts of abortion restrictions. She’s already ruled on two or three. And on the seventh circuit, there are plenty of people. There’s entire groups of lawyers, hundreds of lawyers who challenge every gun restriction. These are the kinds of things that Americans care about now, and whether she’ll actually pay attention to the consequences of her rulings. And that is part of the originalist idea and something I find very strange.
Victoria Nourse: (02:17:57)
I mean, I’d like professor Prakash to answer this because some people think that it’s irrational, if not immoral, not to look at the consequences of your actions. That’s not impartiality. Impartiality is saying I don’t favor either side, I have empathy with both sides, which is what she said at one point. A much better explanation of impartiality. But the refusal to look at consequences, particularly the consequences for the separation of powers, which is something I’ve studied, she’d studied, you’ve studied, seems to be disastrous for the future of democracy. You have to understand that if you repeatedly rule against democratic majorities, that court will be in trouble.
Judy Woodruff : (02:18:37)
Saikrishna Prakash: (02:18:38)
There’s much that Professor Nourse said that I agree with, but I think the general proposition is that judges don’t have the same role as legislators. If we have our judges just deciding based on the consequences, I can tell you that we’d have a very conservative set of principles annunciated that goes far beyond what the court is doing today. We might have a right to life enshrined in the constitution. I don’t think the constitution either speaks to a right to life of fetuses or a right to choice for women. And in that context, I don’t know why we would want…
Saikrishna Prakash: (02:19:10)
We already have a legislature that’s supposed to be looking at the policy. To have a court do it on top of that… I don’t know anyone who would say let’s have a country run by nine judges, or more precisely five of them who will decide what the laws we ought to have by virtue of their consequences. I think it’s a reasonable position to say A, legislature’s make law, B, judges decide what they mean, and C, occasionally the constitution should be read to overturn the laws of the majority, despite the fact that the majority passed them.
Judy Woodruff : (02:19:43)
John Yang, we heard at the very end of the Senate questioning Senator Mike Lee bringing up the court packing question. It’s come up with Joe Biden. He has said, “I’m not going to answer that right now. It’s a distraction.” But it is a point that Republicans keep raising because some Democrats have raised it as a possibility given the fact that Republicans may end up placing a sixth conservative justice on the court. What do we know about the issue? Everybody refers back to FDR, to Franklin Roosevelt and what he tried to do, but how much conversation is there around it? We heard Judge Barrett say it’s been 150 years or more since we’ve had nine justices, but where is that issue right now in terms of the courts? I mean, has it been raised as a serious question?
John Yang: (02:20:42)
It has been raised, especially by sort of more progressive Democrats. I think a lot of it is from as you listen to their argument, it is what they say is redressing what they see as the wrong of Merrick Garland as they’re still angry that Senate majority leader Mitch McConnell would not move on the Merrick Garland nomination in 2016 after Justice Scalia died. There is no magic number about nine as a Judge Barrett I think correctly said. The constitution says that Congress should decide how many justices there are on the Supreme Court. And I think in past history, I think the first Supreme Court there were six justices. I think at other times, there have been as many as 10.
John Yang: (02:21:29)
And actually at one point, I think in, in 1801, Congress reduced the size of the Supreme court to five in an attempt to prevent incoming President Thomas Jefferson of being able to put more members on the court. So I think it is sort of a political question in a lot of ways. And I think it is going to percolate up that the more liberal Democrats and progressive Democrats talk about adding justices to the Supreme Court, talk about doing away with the legislative filibuster in Congress as ways of sort of moving forward, what they see as moving forward and moving into a more progressive direction.
Judy Woodruff : (02:22:16)
Lisa Desjardins, how much conversation has there been among the senators you’ve spoken with about appetite for or against increasing the number of justices?
Lisa Desjardins: (02:22:30)
They’re trying to walk a high wire on this. Clearly it’s something that many Democrats are very interested in. As we’ve said, they are resigned to the idea that Judge Barrett will be confirmed, that Republicans have the votes here, and they have the enough time to do it before the election. Just barely. I think that if you talk to different leaders, you hear different things. Chuck Schumer, the Democratic leader has said everything is on the table. He won’t say anything more. I’ve spoken to Senator Dick Durbin, the number two, and he’s told me he himself isn’t considering it. He doesn’t want to go down that road right now. However, I’ve spoken to many other senators, including Mazie Hirono on the committee who clearly have a very large appetite for this.
Lisa Desjardins: (02:23:10)
What I’ve noted is that in the last day, we heard from a Biden himself who said he’s not a fan of the idea of court packing. He said he doesn’t want to indicate which way he would go, but he did sort of in the words I think of the New York Times crack on that topic and said he himself is not a fan. Another procedural thing to watch, though, that is closer at hand, Judy is Democrats are discussing if they can find some way to delay the vote in committee on Judge Barrett. There is an idea that they can prevent the committee from having a quorum on Thursday, which is when Chairman Graham wants to sort of initiate the voting process for the committee. This is something that Democrats have tried before in other contexts, in other committees, because the committee requires at least nine of the 22 members be present. And of those nine, two must be from the minority party. That’s in the rules of the committee.
Lisa Desjardins: (02:24:03)
So the idea is that Democrats don’t show up, the committee can’t meet. It seems like something that Democrats would want to talk about. However Judy, the problem is that Republicans in the majority can simply change the rules. That’s what they did in the past when Democrats tried this with the Senate finance committee under Orrin Hatch. so I don’t think this is a very, a real way that Democrats can affect the process, but it could be something symbolic that they do. Senator Durbin on a call this morning would not say his thoughts on whether they should do it or not, but said, “This is a new idea, I need to talk to Senator Feinstein about it.” It’s something to watch for Thursday. Either way, Judy, I think Republicans are going to keep this train on the track as much as they can, keep moving toward what looks like a likely Senate floor vote on Judge Barrett in the last week of the month.
Judy Woodruff : (02:24:55)
But just to refresh us Lisa, at this point, Chair Lindsey Graham is talking about a vote this Thursday, or when?
Lisa Desjardins: (02:25:06)
Yeah. It gets a little bit weedy and gunky the way that the committee works. The Chairman Graham would initiate that voting, he would probably call for a vote on Thursday. However, committee votes and committee tradition and rules say that the minority can ask for a one week delay. That’s something that’s kind of baked in. Everyone expects it. So essentially he would tee up the vote on Thursday, open up that process. Then you would expect Democrats to ask for that one week delay setting up the committee vote for one week from Thursday, but he has to start the process a week ahead.
Judy Woodruff : (02:25:44)
But it does look as if he may start the process on Thursday.
Lisa Desjardins: (02:25:49)
Oh absolutely. He certainly will start the process on Thursday, unless something completely unexpected happens before then.
Judy Woodruff : (02:25:56)
I think our White House correspondent Yamiche Alcindor is with us. Yamiche, I’m coming back now to what we’ve heard the president say just around the time he appointed Judge Barrett, and that was he wanted someone on the court in case something, and I’m paraphrasing here, went wrong in the election, and he needed help or support. What do we know about the President’s thinking on that? If there’s some dispute in the election and whether it ends up in the court or not, what has he said about that?
Yamiche Alcindor: (02:26:36)
Well, the president has made it very clear that he believes he needs his Supreme Court nominee to be confirmed, in this case being Judge Barrett, because he believes that Democrats are trying to rig the election. There is no evidence that Democrats are trying to do that. There is no evidence that there is some mass voter fraud by mail, but the President has continued to say that. And as a result, he said that if there is some sort of election issue that makes it to the Supreme Court in response specifically to the general election, that he wants his nominee to be there so that he can win the case. He wants that nominee to vote in favor of him. He’s made that very clear over and over again. You saw Senator Dick Durbin make the case that he believes that the president is the one who has essentially said that Judge Barrett should violate her oath and tell Senators and tell the world how she would vote and whether or not she would support President Trump.
Yamiche Alcindor: (02:27:28)
He said, “Who has put that out there that you might violate your oath? Who has put it out there that you might be wanting to help the President politically?” And he said, “All you have to do is look at the President’s tweets and he’s the one that put it out there. He’s the one who originates that idea.” So you saw Judge Barrett over and over again not want to talk about how she would rule in whether it was an election case or whether it was Roe V Wade, but the president has made it very clear how believes she would rule based just on the fact that he has nominated her. He said in 2016 that he wanted to overturn Roe V Wade. He said just a few weeks ago that he wants her to vote in his favor. So it’s put Judge Barrett in a tough position because she’s not saying what her views are, but the president has essentially offered what her views are.
Judy Woodruff : (02:28:12)
And coming back to you, Marsha Coyle, her answer… I know Senator Leahy raised it, Senator Durbin raised it, she would not be pinned down. She said she would consult. She said the practice is to consult with other justices to look at what the law says, what the constitution says, but she didn’t flatly say, obviously she didn’t say one way or another.
Marcia Coyle: (02:28:39)
No, she didn’t Judy. And to be honest, I wouldn’t expect her to. I would like to say something though. The Supreme Court has been an election issue since the early 1800s. And for the most part, it’s been about cases that the Supreme Court has decided. Brown vs. Board of Education was an election issue. Reg V Scott was an election issue. But recently, more recently, and in particular in the 2016 presidential election, the debate seemed to move or the trends seem to move sharply in another direction. You had then candidate Donald Trump saying he was going to appoint justices who would overrule Roe V Wade. And you had candidate Hillary Clinton saying she was going to appoint justices who would overrule Citizens United.
Marcia Coyle: (02:29:34)
And so introduced has been this very clearly, I think in the public mind is that presidents are going to have litmus tests. They may not use the magic word litmus test, but they’ve created that impression. And that has put nominees, I think, to a terrible disadvantage and also has put the Supreme Court to a terrible disadvantage. That’s a huge burden to go onto the Supreme Court knowing that the president who nominated you told the American public I’m only going to nominate nominees who will do a certain kind of action once that person becomes a justice. So it really has changed. And I think we’re seeing it play out again in this presidential election with President Trump and what he had said, and Yamiche just recounted what he has said. And I don’t expect Judge Barrett to announce she’s going to recuse from election-related cases or the affordable care act at this point. But I think she tried very, very hard to make clear that she had not made any commitments to anybody and had not spoken to anybody about those issues.
Judy Woodruff : (02:30:48)
I want to ask Victoria Nourse and Sai Prakash this. I mean, how does that work? I mean, how do those conversations work between a president and someone they are seriously considering nominating to the court? They say they don’t ask them flat out what would you do on Roe V. Wade, what would you do on this or that? So how does a president reassure himself or herself what that nominee is going to do? Victoria?
Victoria Nourse: (02:31:17)
Well, you read her writings and you listen to people who are in her elite group, which is the Federalist Society that has produced the list here of the nominees. And then again, it’s code, you signal what you would do through various associations. The philosophy has a name originalism or textualism, but what it means is conservative rights, conservative outcomes matter. I mean, it’s been identified. I mean, I hate to say this because I’ve never commented on a judge before they changed the rules to 51 votes. When I was nominated to the seventh circuit, I would’ve had to get 60 votes. I never got a hearing, but once they changed this to 51 votes, this has become hardball politics. So they aren’t going to say anything in the White House. They’re smart. If I had been a lawyer in the White House, I would never have said you have a five minute conversation with the President. You’ll go out and then they’ll start prepping you for not answering questions, basically is how it works. The playbooks known by both sides.
Judy Woodruff : (02:32:18)
Sai Prakash, what’s your perspective on that? I mean, we’re not privy to those conversations, they’re behind closed doors, but what is the signaling that goes on back and forth? What does it look like?
Saikrishna Prakash: (02:32:31)
I think that the key to being chosen as a Supreme Court justice is getting on the shortlist. The President had several lists that seem to grow over time, but he’s not looking at all those potential nominees when he’s deciding. He’s looking at a much shorter list compiled by his aides. And his aides are thinking about the proper judicial philosophy, the proper outcomes, certainly if you’re a Democratic president and compiling that list. But as a Professor Nourse said, they’re not asking these people how they’re going to vote. If you believe in living constitutionalism, you’ll want to appoint someone who’s more likely to be a progressive on these issues because you will think that the progressive judge will bend to that outcome. If you’re a conservative, I think you’ll be more inclined to the idea that judges shouldn’t be legislating from the bench and you’ll favor originalist judges. Having said that the president, I don’t think is wedded to a constitutional principle of originalism. I think he’s just chosen from the people he was given by his staff.
Judy Woodruff : (02:33:29)
Let me just ask you John Yang. I mean, based on your watching of the court, is that likely what happened here?
John Yang: (02:33:36)
Well, I think he clearly had a list. I mean, he put out the list, a list in 2016 during the campaign and in large part to try to reassure evangelical Christians that he would be, he would nominate the sort of sorts of judges that they want. I think that they do try, but I think that in past history we’ve seen justices who have surprised the presidents who’ve nominated them and surprised lawmakers who fought for their confirmations. I mean, going, as far back as Earl Warren, President Eisenhower’s been quoted as saying that nominating Earl Warren to be the Chief Justice was the biggest mistake of his presidency. I think that David Souter surprised conservatives who pushed him to get on the court.
John Yang: (02:34:37)
And presidents have had said that they wanted to push justices on the court who believed in the sanctity of human life. I mean, Ronald Reagan talked that way. George HW Bush talked that way. George W. Bush talk that way. And I think that the demise of Roe vs Wade has been predicted every time one of those justices has been nominated. But I think that this is something that Marsha I know has talked about. Things can look differently once you get on the court, you worry about the court’s reputation, you worry about the court standing. This is something that Chief Justice Marcia has written about. This is something that Chief Justice John Roberts is very concerned about
Judy Woodruff : (02:35:25)
Marsha, yes. I’d like you to comment on that. And again, to comment on the fact that how unusual it is that a president one president gets to choose three Supreme Court justices. How many presidents have had that opportunity?
Marcia Coyle: (02:35:43)
Not many at all. And yes, it is unusual. I wanted to say too, that we have to remember that the nomination and confirmation process is a political process. These nominees, whoever they are, do become nominees because they have made contacts over the years, they have mentors that may be politically connected, and that’s how they come to the attention of a White House. I know at one point I think Judge Barrett said in her opening statement that she had never imagined that she could be sitting where she was sitting, but I don’t think that’s really accurate because she had been mentioned in recent years as a possible Supreme Court nominee. In fact, president Trump had said he was saving her for Justice Ginsburg’s seat, but also she had been very active with the Federalist Society, which is a conservative organization and has been almost a feeder organization to this White House for judicial nominations.
Marcia Coyle: (02:36:50)
So it is a political process. It doesn’t mean that they know how she is going to vote as she is confirmed on every issue. But I think while there have been surprises on the Supreme Court, as John pointed out, I think that the process from the presidential appointer has become firmer, more assured because of roots like the Federalist Society. And I think going back to Reagan, they just have really honed how to do this process. And there aren’t many surprises. You are going to have in Judge Barrett, a very conservative justice if she is confirmed.
Judy Woodruff : (02:37:32)
Yamiche Alcindor, that is certainly what President Trump is counting on. We know that he has just gone back out on the campaign trail after going through his own diagnosis treatment. And he says complete recovery from COVID, COVID-19, but he has continued to bring up the Amy Coney Barrett appointment to speak about it with great pride and he’s keeping an eye on it.
Yamiche Alcindor: (02:38:03)
He’s keeping a very close eye on these hearings and on the confirmation, upcoming confirmation he believes of Judge Barrett. He says over and over again on the campaign trail that one of the things that conservatives can trust him on is his ability to pick really good, he says, and really conservative justices. He brags a lot about the federal bench and the dozens and dozens of nominees that he’s put there. But as he has nominated Judge Barrett, he’s also started to incorporate her into what we in politics call his stump speech, it’s a speech that he gives a different cities and in different states. He returned to the campaign trail and went to Florida yesterday and he was talking about the Supreme Court to big, big applause from people who are very excited about that. So the president understands this is a conservative goal, and this is something that he’s delivering to his base.
Judy Woodruff : (02:38:53)
All right, we are back in the hearing room. The committee is back from its lunch break. I want to thank all of our reporters and analysts, the questioning resumes. We are going to start preparing for the news hour this evening, but we hope you’ll stay right where you are. Uninterrupted coverage will continue on PBS stations and online on our website, YouTube and other social media through the conclusion of today’s hearings. I’m Judy Woodruff, thank you for joining us. Please stay with us [crosstalk 02:39:19].
Sheldon Whitehouse: (02:39:18)
… conversation that you and I had, when we spoke on the telephone. You were kind enough to hear out a presentation that I made, and I intend to ask some questions in that area, but it doesn’t make sense to ask questions if I haven’t laid the predicate, particularly for viewers who are watching this. So I guess the reason that I want to do this is because people who are watching this need to understand that this small hearing room and the little TV box that you’re looking at, the little screen that you’re looking at are a little bit like the frame of a puppet theater. And if you only look at what’s going on in the puppet theater, you’re not going to understand the whole story. You’re not going to understand the real dynamic, what is going on here. And you’re certainly not going to understand forces outside of this room who are pulling strings and pushing sticks and causing the puppet theater to react.
Sheldon Whitehouse: (02:40:38)
So first let me say, why do I think outside forces are here pulling strings? Well, part of it is behavior. We have colleagues here who supported you, this nominee, before there was a nominee. That’s a little unusual. We have the political ram job that we have already complained of driving this process through at break neck speed in the middle of a pandemic while the Senate is closed for safety reasons and while we’re doing nothing about the COVID epidemic around us. We have some very awkward 180s from colleagues, Mr. Chairman, you figure in this, our leader said back when it was Garland versus Gorsuch that of course, of course the American people should have a say in the court’s direction. Of course, of course, said Mitch McConnell. That’s long gone. Senator Grassley said, “The American people shouldn’t be denied a voice”, that’s long gone. Senator Cruz said, “You don’t do this in an election year.” That’s long gone. And our chairman made his famous hold the tape promise, “If an opening comes in the last year of president Trump’s term, we’ll wait till the next election”, that’s gone too.
Sheldon Whitehouse: (02:42:18)
So there is a lot of hard to explain hypocrisy and rush taking place right now. And my experience around politics is that when you find hypocrisy in the daylight, look for power in the shadows. Now people may say, well, what does all this matter? This is a political parlor game, it’s no big deal. Well, there’s some pretty high stakes here that we’ve been talking about here on our side. And I’ll tell you three of them right here. Roe versus Wade, Obergefell, and the Obamacare cases. Here’s the GOP platform, the Republican platform, the platform of my colleagues on the other side of this aisle say that, “A Republican president will appoint judges who will reverse Roe, Obergefell, and the Obamacare cases.”
Sheldon Whitehouse: (02:43:20)
So if you have a family member with an interest in some autonomy over their body under Roe vs Wade, the ability to have a marriage, have friends marry, have a niece or a daughter or son marry someone of their same sex, you’ve got a stake. And if you’re one of the millions and millions of Americans who depend on the Affordable Care Act, you’ve got a mistake. It’s not just the platform over and over again. Let’s start by talking about the Affordable Care Act. Here’s the President talking about this litigation that we’re gearing up this nominee for, for November 10th. In this litigation. He said, “We want to terminate healthcare under Obamacare.” That is the president’s statement. So when we react to that, don’t act as if we’re making this stuff up. This is what President Trump said. This is what your party platform says. Reverse the Obamacare cases.
Sheldon Whitehouse: (02:44:26)
Senator after Senator, including many in this committee, filed briefs saying that the Affordable Care Act should be thrown out by courts. Why is it surprising for us to be concerned that you want this nominee to do what you want nominees to do? One quick stop on NFIB V Sebelius, because a lot of this has to do with money. This is an interesting comparison. National Federation of Independent Businesses, until it filed the NFIB versus Sebelius case, had its biggest donation ever of $21,000. In the year that it went to work on the Affordable Care Act, 10 wealthy donors gave $10 million. Somebody deserves a thank you.
Sheldon Whitehouse: (02:45:19)
So let’s go onto Roe V. Wade. Same thing, same thing. The president has said that reversing Roe V. Wade will happen automatically because he’s putting pro-life justices on the court. Why would we not take him at his word? The Republican party platform says it will reverse Roe. Why would we not comment on that and take you at your word? Senators here, including Senator Hawley, have said, “I will vote only for nominees who acknowledge that Roe V. Wade is wrongly decided”, and they’re pledged to vote for this nominee. Do the math. That’s a really simple equation to run. The Republican brief in June Medical said Roe should be overruled. So don’t act surprised when we ask questions about whether that’s what you’re up to here.
Sheldon Whitehouse: (02:46:20)
And finally, out in the ad world that you have spared yourself wisely, Judge Barrett, the Susan B. Anthony foundation is running advertisements right now saying that you are set. You are set to give our pro-life country the court that it deserves. There’s the ad with the voiceover. She’s set, she’s set. And then Roe, Obamacare cases, and Obergefell, gay marriage. National Organization for Marriage, the big group that opposes same-sex marriage, says, “In this proceeding, all our issues are at stake.” Republican platform says it wants to reverse Obergefell. And the Republican brief filed in the case said, “Same-sex relationships don’t fall within any constitutional protection.”
Sheldon Whitehouse: (02:47:18)
So when we say the stakes are high on this, it’s because you’ve said the stakes are high on this. You have said that’s what you want to do. So how are people going about doing it? What is the scheme here? Let me start with this one. In all cases, there’s big anonymous money behind various lanes of activity. One lane of activity is through the conduit of the Federalist Society. It’s managed by a guy, was managed by a guy named Leonard Leo, and it’s taken over the selection of judicial nominees. How do we know that to be the case? Because Trump has said so over and over again, his White House counsel said so. So we have an anonymously funded group controlling judicial selection run by this guy, Leonard Leo.
Sheldon Whitehouse: (02:48:13)
Then in another lane, we have again, anonymous funders running through something called the Judicial Crisis Network, which is run by Carrie Severino. And it’s doing PR and campaign ads for Republican judicial nominees. It got 17 million, single $17 million donation in the Garland Gorsuch contest. It got another single $17 million donation to support Kavanaugh. Somebody, perhaps the same person, spent $35 million to influence the makeup of the United States Supreme Court. Tell me that’s good. And then over here, you have a whole array of legal groups also funded by dark money, which have a different role. They bring cases to the court. They don’t wind their way to the court your honor, they get shoved to the court by these legal groups. Many of which asked to lose below so they can get quickly to the court to get their business done there. And then they turn up in an chorus, an orchestrated chorus of [anarchy 00:33:22].
Sheldon Whitehouse: (02:49:22)
Now I’ve had a chance to have a look at this. And I was in a case actually as an amicus myself, the consumer financial protection board case. And in that case, there were one, two, three, four, five, six, seven, eight, nine, 10, 11 amicus briefs filed. And every single one of them was a group funded by something called Donors Trust. Donors Trust is a gigantic identity scrubbing device for the right wing so that it says Donors Trust is the donor without whoever the real donor is. It doesn’t have a business. It doesn’t have a business plan. It doesn’t do anything. It’s just an identity scrubber. And this group here.
Sheldon Whitehouse: (02:50:03)
… Vanity scrubber. And this group here, the Bradley Foundation, funded 8 out of the 11 briefs. That seems weird to me when you have an Amicus briefs coming in little flotillas that are funded by the same groups, but nominally separate in the court. So, actually attach this to my brief as an appendix.
Sheldon Whitehouse: (02:50:24)
Center for Media and Democracy saw it and they did better work. They went on to say which foundations funded the brief writers in that CFPB case. Here’s the Bradley Foundation. For 5.6 million to those groups. Here’s Donors Trust, 23 million to those brief writing groups. The grand total across all the donor groups was $68 million. So, the groups that were filing Amicus briefs, pretending that they were different groups, and it’s not just in the consumer financial protection board case, you might say, “Well, that was just a one-off.”
Sheldon Whitehouse: (02:51:06)
Here’s Janice, the anti-labor case, that had a long trail through the court through Friedrichs and through Knox and through other decisions. And Source Watch, and ProPublica did some work about this. Here’s donor’s trust and donor’s capital fund, and here’s the Bradley Foundation. And they totaled giving $45 million to the 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 groups that filed an Amicus briefs pretending to be different groups. And both of the lawyer groups in the case. Funded by Donors Trust, funded by Bradley Foundation and Janice. This is happening over and over and over again. And it goes beyond just the briefs. It goes beyond just the Amicus presentations. The Federalist Society. Remember this group that is acting as the conduit and the Donald Trump has said is doing his judicial selection? They’re getting money from the same foundations. From Donors Trust, $16.7 million. From the Bradley Foundation, $1.37 million. From the same group of foundations, total, $33 million.
Sheldon Whitehouse: (02:52:23)
So, you can start to look at these and you can start to tie them together. The legal groups, all the same funders over and over again, bringing the cases and providing this orchestrated chorus of Amiki. Then, the same group also funds the Federalist society over here. The Washington Post wrote a big expose about this and that made Leonard Leo a little hot, a little bit like a burned agent. So, he had to jump out and he went off to go and do anonymously funded voter suppression work. Guess who jumped in to take over the selection process in this case for Judge Barrett? Carrie Severino made the hop. So, once again, ties right in together.
Sheldon Whitehouse: (02:53:16)
So, the Center for Media and Democracy’s done a little bit more research. Here’s a Bradley Foundation memo that they’ve published. The Bradley Foundation is reviewing a grant application, asking for money for this orchestrated Amicus process. And what did they say in the staff recommendation? “It is important to orchestrate,” their word not mine, “important to orchestrate high caliber Amicus efforts before the court.” They also note that Bradley has done previous philanthropic investments in the actual underlying legal actions. So, Bradley is funding. What do they call? Philanthropic investing in the underlying legal action and then giving money to groups to show up in the orchestrated chorus of Amici. That can’t be good.
Sheldon Whitehouse: (02:54:12)
And it goes on because they also found this email. This email comes from an individual at the Bradley Foundation, and it asks our friend Leonard Leo, who used to run the selection process, “Is there a 501(c)(3) non-profit to which Bradley could direct any support of the two Supreme Court Amicus projects, other than donor’s trust?” I don’t know why they wanted to avoid the reliable identity scrubber donors trust, but for some reason they did. So, Leonard Leo writes back on Federalist society address, so don’t tell me that as the Federalist society business, on Federalist society, on his address, he writes back, “Yes, send it to the Judicial Education Project, which could take and allocate the money.” And guess who works for the judicial education project? Carrie Severino. Who also helped select this nominee, running the Trump Federalist Society selection process.
Sheldon Whitehouse: (02:55:19)
So, the connections abound in the Washington Post article, they point out that the judicial crisis network’s office is on the same hallway, in the same building as the Federalist society. And that when they sent their reporter to talk to somebody at the Judicial Crisis Network, somebody from the Federalist society came down to let them up. This, more and more, looks like it’s not three schemes, but it’s one scheme, with the same funders selecting judges, funding campaigns for the judges, and then showing up in court in these orchestrated Amicus flotillas to tell the judges what to do.
Sheldon Whitehouse: (02:56:11)
On the day judicial crisis network, you’ve got the Leonard Leo connection, obviously, she hopped in to take over for him with the Federalist Society. You’ve got the campaigns that I’ve talked about, where they take $17 million contributions. That’s a big check to write, $17 million. To campaign for Supreme Court nominees, no idea who that is or what they got for it. You’ve got briefs that she wrote. The Republican Senators filed briefs in that NFIB case signed by Ms. Severino. The woman who helped choose this nominee has written briefs for Republican senators attacking the ACA. Don’t say the ACA is not an issue here.
Sheldon Whitehouse: (02:56:56)
And by the way, the Judicial Crisis Network funds the Republican Attorney’s General, funds RAGA the Republican Attorney Generals Association, and it funds individual Republican Attorneys General. And guess who the plaintiffs are in the Affordable Care Act case? Republican Attorneys General. Trump joined them because he didn’t want to defend. So, he’s in with the Republican Attorneys General. But, here’s the Judicial Crisis Network campaigning for Supreme Court nominees, writing briefs for senators against the Affordable Care Act, supporting the Republicans who are bringing this case, and leading the selection process for this nominee.
Sheldon Whitehouse: (02:57:37)
Here’s the page off the brief. Here’s where they are. Mitch McConnell and on through the list. Senator Collins, Senator Cornyn, Senator Hoven, Senator, who’s still here? Marco Rubio. It’s huge assortment of Republican senators who Carrie Severino wrote a brief for against, against, against the Affordable Care Act. So, this is a, to me, pretty big deal. I’ve never seen this around any court that I’ve ever been involved with. Where there’s this much dark money and this much influence being used.
Sheldon Whitehouse: (02:58:23)
Here’s how the Washington Post summed it up, “This is a conservative activist behind the scenes campaign to remake the nation’s courts. And it’s a $250 million dark money operation.” $250 million is a lot of money to spend if you’re not getting anything for it. So, that raises the question, what are they getting for it? Well, I showed the slide earlier on the Affordable Care Act and on Obergefell and on Roe vs. Wade. That’s where they lost. But with another judge, that could change. That’s where the contest is. That’s where the Republican party platform tells us to look at how they want judges to rule, to reverse Roe, to reverse the Obamacare cases, and to reverse Obergefell and take away gay marriage. That is their stated objective and plan. Why not take them at their word?
Sheldon Whitehouse: (02:59:20)
But there’s another piece of it. And that is, not what’s ahead of us, but what’s behind us. What’s behind us is now 80 cases, Mr. Chairman, 80 cases under Chief Justice Roberts that have these characteristics. One, they were decided five to four by a bare majority. Two, the five to four majority was partisan in the sense that not one democratic appointee joined the five. I refer to that group as the Roberts five. It changes a little bit as with Justice Scalia’s death, for instance. But, there’s been a steady Robert’s five that has delivered now 80 of these decisions. And the last characteristic of them is that there is an identifiable Republican donor interest in those cases, and in every single case, that donor interest won. It was an 80 to 0, 5 to 4 partisan route, ransacking.
Sheldon Whitehouse: (03:00:27)
And it’s important to look at where those cases went, because they’re not about big public issues like getting rid of the Affordable Care Act, undoing Roe vs. Wade and undoing same-sex marriage. They’re about power. And if you look at those 80 decisions, they fall into four categories over and over and over again. One, unlimited in dark money in politics. Citizens United is the famous one, but it’s continued sense with McCutcheon, and we’ve got one coming up now. Always the 5 4 unlimited money in politics, never protecting against dark money in politics. Despite the fact that they said it was going to be transparent. And who wins when you allow unlimited dark money in politics? A very small group. The ones who have unlimited money to spend and a motive to spend it in politics. They win, everybody else loses. And if you’re looking at who might be behind this, let’s talk about people with unlimited money to spend and a motive to do it. We’ll see how that goes.
Sheldon Whitehouse: (03:01:37)
Next. Knock the civil jury down. Whittle it down to a nub. The civil jury was in the Constitution, in the Bill of Rights, in our darn Declaration of Independence, but it’s annoying to big corporate powers because you can swagger your way as a big corporate power through Congress. You can go and tell the president, you put money into to elect what to do. He’ll put your stooges at the EPA. It’s all great until you get to the Civil Jury because they have an obligation, as you know, judge Barrett, they have an obligation under the law to be fair to both parties, irrespective of their size. You can’t bribe them. You’re not allowed to. It’s a crime to tamper with a jury. It’s standard practice to tamper with Congress. And they make decisions based on the law. If you’re used to being the boss and swaggering your way around the political side, you don’t want to be answerable before a jury. And so, one after another, these 80, 5 to 4 decisions have knocked down, whittled away at the civil jury, a great American institution.
Sheldon Whitehouse: (03:02:47)
Third. First was unlimited dark money. Second was demean and diminish the civil jury. Third is weaken regulatory agencies. A lot of this money I’m convinced is polluter money. The Koch industries is a polluter. The fossil fuel industry is a polluter. Who else would be putting buckets of money into this and wanting to hide who they are behind Donor’s Trust or other schemes? And if you’re a big polluter, what do you want? You want weak regulatory agencies. You want ones that you can box up and run over to Congress and get your friends to fix things for you in Congress. Over and over and over again, these decisions are targeted at regulatory agencies to weaken their independence and weaken their strength. And if you’re a big polluter, a weak regulatory agency is your idea of a good day.
Sheldon Whitehouse: (03:03:47)
And the last thing is in politics. In voting. Why on earth the court made the decision, a factual decision, not something appellate courts are ordinarily supposed to make, as I understand it, Judge Barrett, the factual decision that nobody needed to worry about minority voters in pre-clearance States being discriminated against, or that legislators would try to knock back their ability to vote. These five made that finding in Shelby County against bipartisan legislation from both Houses of Congress, hugely passed on no factual record. They just decided that that was a problem that was over. On no record, with no basis because it got them to the result that we then saw. What followed? State after state, after state passed voter suppression laws. One, so badly targeting African-Americans that the two courts that it was surgically, surgically tailored to get after minority voters.
Sheldon Whitehouse: (03:04:55)
And gerrymandering, the other great control. Bulk gerrymandering, where you go into a state like the REDMAP project did in Ohio and Pennsylvania, and you pack Democrats so tightly into a few districts that all of the others become Republican majority districts. And in those States, you send a delegation to Congress that has a huge majority of Republican members, like 13 to 5, as I recall, in a state where the five, the party of the five, actually won the popular vote. You’ve sent a delegation to Congress that is out of step with the popular vote of that state and court after court figured out how to solve that. And the Supreme Court said, “Nope, 5 to 4, again. Nope. We’re not going to take an interest in that question.”
Sheldon Whitehouse: (03:05:46)
In all these areas where it’s about political power for big, special interests and people who want to fund campaigns, and people who want to get their way through politics without actually showing up, doing it behind Donors Trust and other groups, doing it through these schemes, over and over and over again, you see the same thing. 80 decisions, judge Barrett. 80 decisions, an 80 to 0 sweep. I don’t think you’ve tried cases, but some cases, the issue is bias and discrimination. And if you’re making a bias case as a trial lawyer, Lindsey Graham is a hell of a good trial lawyer, if he wanted to make a bias case, Dick Durbin’s a hell of a good trial lawyer, if they wanted to make a bias case and they could show an 80 to 0 pattern, A, that’s admissible and B, I’d love to make that argument to the jury. I’d be really hard pressed to be the lawyer saying, “No, 80 to 0 is just a bunch of flukes.” All 5 4, all partisan, all this way.
Sheldon Whitehouse: (03:06:51)
So, something is not right around the court. And dark money has a lot to do with it. Special interests have a lot to do with it. Donors Trust and whoever’s, hiding behind Donor’s Trust, has a lot to do with it. And the Bradley Foundation orchestrating it’s Amici over at the court has a lot to do with it. So, I thank you, Judge Barrett for listening to me now a second time. And I think this gives you a chance for you and I to tee up an interesting conversation tomorrow. And I thank my colleagues for hearing me out.
Mr. Chairman: (03:07:32)
Thank you, Senator Whitehouse. Senator Cruz.
Sheldon Whitehouse: (03:07:37)
Oh, Mr. Chairman, can I put three letters in [inaudible 00:17:40]?
Mr. Chairman: (03:07:39)
Sheldon Whitehouse: (03:07:40)
Senator Cruz: (03:07:43)
Thank you, Mr. Chairman. Judge Barrett, welcome. Congratulations on being nominated. Congratulations on enduring the confirmation proceedings. And I think it is a particularly good thing we’ve made it through what I guess you would call the top of the lineup of the questioning and some of the smartest and frankly, most effective questioners on the Democratic side. And I think it speaks volumes that collectively, they’ve had very few questions for you. And virtually none calling into question your credentials, which are impeccable [crosstalk 00:03:08:33]. Your record. And what I think is, has been an extraordinary life you’ve led. So, that should be the source of great satisfaction in terms of the scholarly record and judicial record that you’ve spent a lifetime building. I want to start by asking you a question. Why is the first Amendment’s protection of religious Liberty? Why is that important?
Judge Amy Coney Barrett: (03:09:04)
Well, I think it’s broadly viewed that the framers protected, and ratifiers, protected the free exercise of religion because for reasons that we all know from history of persecuted, religious minorities fleeing to the United States, that enshrining that protection it was one of the Bill of Rights because it was considered so fundamental.
Senator Cruz: (03:09:27)
And why does that matter to Americans? What difference does that make in anybody’s life?
Judge Amy Coney Barrett: (03:09:35)
Well, I think all of the Bill of Rights, each and every one of them, is important to Americans because we value the constitution, including religious Liberty.
Senator Cruz: (03:09:46)
Well, how about the free speech protections of the first amendment? Why are those important?
Judge Amy Coney Barrett: (03:09:49)
So that minority viewpoints can’t be squashed. So that it’s not just the majority that can speak popular views. You don’t really need the first amendment if what you’re saying is something that everybody wants to hear, you need it when people are trying to silence you.
Senator Cruz: (03:10:07)
And how about the second amendment? Why is the right to keep and bear arms important?
Judge Amy Coney Barrett: (03:10:12)
Well, we’ve talked about Heller earlier this morning and what Heller tells us is that the second amendment protects an individual right to bear arms for self-defense.
Senator Cruz: (03:10:24)
Well, I think all of those rights, and I agree with you, the entire Bill of Rights is incredibly important to Americans. I also think what is really striking about this hearing today and also yesterday, is that Senate Democrats are not defending what I think is really a radical agenda that they have when it comes to the Bill of Rights. And the topics they’re discussing today have little bearing to the rights that are really at issue and in jeopardy at the Supreme Court.
Senator Cruz: (03:11:02)
And so, let’s take a few minutes to go through them. First of all, we’ve had some discussion of Roe vs. Wade. You have declined to give an opinion on a matter that might be pending before the court. That is, of course, the same answer that every single sitting justice has given when he or she was sitting in the same chair you are. It is mandated by the judicial canons of ethics, whether one is a nominee of a Democratic president or a Republican president, that has been the answer that has been given to this committee for decades. But I do think it is interesting that our Democratic colleagues, number one, don’t discuss what would actually happen if there came a day in which Roe vs. Wade were overruled. Which is namely that it would not suddenly become the case that abortion was illegal, but rather it would revert to the status of the law as it’s been for nearly 200 years of our nation’s history. Which is that the question of the permissibility of abortion as a question for elected legislatures at the state level and at the federal level.
Senator Cruz: (03:12:17)
And it is difficult to dispute that there are a great many jurisdictions, including jurisdictions like California and New York, who even if Roe vs, Wade were no longer the law of the land, their elected legislatures would almost certainly continue unrestricted access to abortion with virtually no limitation. What I find interesting though, is that our Democratic colleagues do not discuss what is really the radical position of the most liberal justices on the Supreme Court. Which is that no restrictions whatsoever are permissible when it comes to abortion.
Senator Cruz: (03:13:03)
Yesterday, one of the Democratic senators made reference to the case Gonzalez vs. Carhart. I’m quite familiar with that case. And I represented Texas and a number of other States as a Miki in that case. That case concerned the constitutionality of the Federal ban on partial birth abortion. That was legislation that passed Congress was signed into law that made the really gruesome practice of partial birth abortion, illegal. Overwhelming majority of Americans believe partial birth abortion should be prohibited. Even those who identify as pro choice. A significant percentage of Americans don’t want to see that gruesome practice allowed. Supreme Court, by a vote of 5 to 4 in Carhart vs. Gonzales, upheld the federal ban on partial birth abortion. That means there were four justices ready to strike it down, ready to conclude that you can’t ban partial birth abortion, that you can’t ban late term abortion.
Senator Cruz: (03:14:04)
And by the way, other restrictions that are at question include parental consent laws, parental notification laws. None of our Democratic colleagues want to talk about the justices they want to see on the court would strike down every single reasonable restriction on unlimited abortion on demand that the vast majority of Americans support. How about free speech? Well, we’ve heard quite a bit about free speech. The Senator from Rhode Island just gave a long presentation, complete with lots of charts. I’ll say a couple of things on free speech.
Senator Cruz: (03:14:48)
First of all, our Democratic colleagues when they address the issue of so-called dark money in campaign finance contributions, are often deeply, deeply hypocritical, and don’t address the actual facts that exist. Here are some facts. Of the top 20 organizations spending money for political speech in the year 2016, 14 of them gave virtually all of their money to Democrats and another 3 split their money evenly. So, only 3 of the top 20 gave money to Republicans. What did that mean in practice? That meant the top 20 super PAC donors contributed $422 million to Democrats and 189 million to Republicans. Those who give these impassioned speeches against dark money, don’t mention that their side is funded by dark money with a massive differential. The Senator from Rhode Island talked about big corporate powers without acknowledging that the contributions from the fortune 500 in this presidential election overwhelmingly favor Joe Biden and The Democrats. Without acknowledging that the contributions from Wall Street in this election overwhelmingly favor Joe Biden and the Democrats.
Senator Cruz: (03:16:12)
It’s an awful lot of rhetoric about power. But it gets even more interesting when you look at Supreme Court nominations. We just heard an attack on the Federalist Society, a group that I’ve been a member of for over 25 years, I joined as a law student. It’s a group that brings Conservatives, Libertarians Constitutionalists together to have robust discussions about the Constitution and about the law.
Senator Cruz: (03:16:39)
What’s interesting is nowhere in the Senator of Rhode Island’s remarks was any reference to a company called Arab Baila Advisors, which is a for-profit entity that manages non-profits including the 1630 Fund in the new Venture fund. Now what on earth are those? Those sound like awfully dark and can be confusing names. Well, according to the Wall Street Journal this Sunday, in the year 2017 and 2018, those entities reported $987.5 million in revenue. That’s nearly a billion dollars. We heard a lot of thundering indignation at what was described as $250 million of expenditures. In this case, you’ve got a billion dollars.
Senator Cruz: (03:17:33)
The Senator Rhode Island said that that much money, much of which is dark money that we don’t know who contributed it, he asked what are they getting for it? And by the way, one of the things they’re getting for it is a group called Demand Justice. A project of those entities spent $5 million opposing Justice Brett Kavanaugh, and has just launched a seven figure ad by opposing your confirmation. So, all of the great umbrage about the corporate interest or spending dark money, is wildly in conflict with the actual facts that the corporate interests that are spending dark money are funding the Democrats. By a factor of 3 to 1 or greater. A fact that doesn’t ever seem to be acknowledged.
Senator Cruz: (03:18:33)
But not only that, what was Citizens United about? It’s interesting, most people at home they’ve heard about Citizens United. They know it makes Democrats very, very upset, but they don’t actually know what the case is about. Citizens United concerned, whether or not it was legal to make a movie criticizing a politician. Specifically, Citizens United is a small nonprofit organization based here in DC, that made a movie that was critical of Hillary Clinton. And the Obama Justice Department took the position that it could fine, it could punish Citizens United for daring to make a movie critical of a politician. The case went all the way to the U S Supreme Court at the oral argument there was a moment that was truly chilling. Justice Sam Alito asked the Obama Justice Department, ” Is it your position under your theory of the case that the Federal Government can ban books?” And the Obama justice Department responded, “Yes. Yes. It is our position that if the books criticize a political candidate, a politician, the Federal Government can ban books.” As far as I’m concerned, that is a terrifying view of the first amendment.
Senator Cruz: (03:20:03)
Citizens united was decided 5 to 4. By a narrow 5, 4 majority, the Supreme Court concluded the First Amendment did not allow the Federal Government to punish you for making a movie critical of a politician. And likewise, that the Federal Government couldn’t ban books. Four Justices to Senate. Four Justices were willing to say the Federal Government can ban books and can ban movies and presumably could ban books, as well.
Senator Cruz: (03:20:36)
When Hillary Clinton was running for president, she explicitly promised every Justice she nominated to the Court would pledge to overturn Citizens United. By the way, Hillary Clinton said she would demand of her nominee something you have rightly said that this administration is not demanded of you, which is a commitment on any case as to how you will rule. Democrats have shown no compunction in expecting their nominees to make a promise, here’s how I’m going to vote on a pending case, judicial ethics be damned.
Senator Cruz: (03:21:14)
Or how about the Second Amendment? We’ve heard some reference to the Heller decision. Senator from Connecticut yesterday, talked about reasonable gun control and gun safety provisions. Well, that of course was not what was at stake in the Heller decision. Number one, majority decision in Heller, Justice Scalia’s opinion, acknowledges reasonable provisions, things like prohibitions on felons and possession are permissible. Your opinion in the Canner decision, likewise acknowledged that restrictions preventing dangerous criminals from receiving firearms are entirely consistent and permissible under the Second Amendment.
Senator Cruz: (03:22:03)
But, the issue at Heller was much more fundamental. It was whether the Second Amendment protects an individual right to keep and bear arms at all. The vote in